Tag: us federal court system

These 26 words ‘created the internet.’ Now the Supreme Court may be coming for them | CNN Business

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Congress, the White House and now the US Supreme Court are all focusing their attention on a federal law that’s long served as a legal shield for online platforms.

This week, the Supreme Court is set to hear oral arguments on two pivotal cases dealing with online speech and content moderation. Central to the arguments is “Section 230,” a federal law that’s been roundly criticized by both Republicans and Democrats for different reasons but that tech companies and digital rights groups have defended as vital to a functioning internet.

Tech companies involved in the litigation have cited the 27-year-old statute as part of an argument for why they shouldn’t have to face lawsuits alleging they gave knowing, substantial assistance to terrorist acts by hosting or algorithmically recommending terrorist content.

A set of rulings against the tech industry could significantly narrow Section 230 and its legal protections for websites and social media companies. If that happens, the Court’s decisions could expose online platforms to an array of new lawsuits over how they present content to users. Such a result would represent the most consequential limitations ever placed on a legal shield that predates today’s biggest social media platforms and has allowed them to nip many content-related lawsuits in the bud.

And more could be coming: the Supreme Court is still mulling whether to hear several additional cases with implications for Section 230, while members of Congress have expressed renewed enthusiasm for rolling back the law’s protections for websites, and President Joe Biden has called for the same in a recent op-ed.

Here’s everything you need to know about Section 230, the law that’s been called “the 26 words that created the internet.”

Passed in 1996 in the early days of the World Wide Web, Section 230 of the Communications Decency Act was meant to nurture startups and entrepreneurs. The legislation’s text recognized that the internet was in its infancy and risked being choked out of existence if website owners could be sued for things that other people posted.

One of the law’s architects, Oregon Democratic Sen. Ron Wyden, has said that without Section 230, “all online media would face an onslaught of bad-faith lawsuits and pressure campaigns from the powerful” seeking to silence them.

He’s also said Section 230 directly empowers websites to remove content they believe is objectionable by creating a “good Samaritan” safe harbor: Under Section 230, websites enjoy immunity for moderating content in the ways they see fit — not according to others’ preferences — although the federal government can still sue platforms for violating criminal or intellectual property laws.

Contrary to what some politicians have claimed, Section 230’s protections do not hinge on a platform being politically or ideologically neutral. The law also does not require that a website be classified as a publisher in order to “qualify” for liability protection. Apart from meeting the definition of an “interactive computer service,” websites need not do anything to gain Section 230’s benefits – they apply automatically.

The law’s central provision holds that websites (and their users) cannot be treated legally as the publishers or speakers of other people’s content. In plain English, that means that any legal responsibility attached to publishing a given piece of content ends with the person or entity that created it, not the platforms on which the content is shared or the users who re-share it.

The seemingly simple language of Section 230 belies its sweeping impact. Courts have repeatedly accepted Section 230 as a defense against claims of defamation, negligence and other allegations. In the past, it’s protected AOL, Craigslist, Google and Yahoo, building up a body of law so broad and influential as to be considered a pillar of today’s internet.

“The free and open internet as we know it couldn’t exist without Section 230,” the Electronic Frontier Foundation, a digital rights group, has written. “Important court rulings on Section 230 have held that users and services cannot be sued for forwarding email, hosting online reviews, or sharing photos or videos that others find objectionable. It also helps to quickly resolve lawsuits cases that have no legal basis.”

In recent years, however, critics of Section 230 have increasingly questioned the law’s scope and proposed restrictions on the circumstances in which websites may invoke the legal shield.

For years, much of the criticism of Section 230 has come from conservatives who say that the law lets social media platforms suppress right-leaning views for political reasons.

By safeguarding platforms’ freedom to moderate content as they see fit, Section 230 does shield websites from lawsuits that might arise from that type of viewpoint-based content moderation, though social media companies have said they do not make content decisions based on ideology but rather on violations of their policies.

The Trump administration tried to turn some of those criticisms into concrete policy that would have had significant consequences, if it had succeeded. For example, in 2020, the Justice Department released a legislative proposal for changes to Section 230 that would create an eligibility test for websites seeking the law’s protections. That same year, the White House issued an executive order calling on the Federal Communications Commission to interpret Section 230 in a more narrow way.

The executive order faced a number of legal and procedural problems, not least of which was the fact that the FCC is not part of the judicial branch; that it does not regulate social media or content moderation decisions; and that it is an independent agency that, by law, does not take direction from the White House.

Even though the Trump-era efforts to curtail Section 230 never bore fruit, conservatives are still looking for opportunities to do so. And they aren’t alone. Since 2016, when social media platforms’ role in spreading Russian election disinformation broke open a national dialogue about the companies’ handling of toxic content, Democrats have increasingly railed against Section 230.

By safeguarding platforms’ freedom to moderate content as they see fit, Democrats have said, Section 230 has allowed websites to escape accountability for hosting hate speech and misinformation that others have recognized as objectionable but that social media companies can’t or won’t remove themselves.

The result is a bipartisan hatred for Section 230, even if the two parties cannot agree on why Section 230 is flawed or what policies might appropriately take its place.

“I would be prepared to make a bet that if we took a vote on a plain Section 230 repeal, it would clear this committee with virtually every vote,” said Rhode Island Democratic Sen. Sheldon Whitehouse at a hearing last week of the Senate Judiciary Committee. “The problem, where we bog down, is that we want 230-plus. We want to repeal 230 and then have ‘XYZ.’ And we don’t agree on what the ‘XYZ’ are.”

The deadlock has thrown much of the momentum for changing Section 230 to the courts — most notably, the US Supreme Court, which now has an opportunity this term to dictate how far the law extends.

Tech critics have called for added legal exposure and accountability. “The massive social media industry has grown up largely shielded from the courts and the normal development of a body of law. It is highly irregular for a global industry that wields staggering influence to be protected from judicial inquiry,” wrote the Anti-Defamation League in a Supreme Court brief.

For the tech giants, and even for many of Big Tech’s fiercest competitors, it would be a bad thing, because it would undermine what has allowed the internet to flourish. It would potentially put many websites and users into unwitting and abrupt legal jeopardy, they say, and it would dramatically change how some websites operate in order to avoid liability.

The social media platform Reddit has argued in a Supreme Court brief that if Section 230 is narrowed so that its protections do not cover a site’s recommendations of content a user might enjoy, that would “dramatically expand Internet users’ potential to be sued for their online interactions.”

“‘Recommendations’ are the very thing that make Reddit a vibrant place,” wrote the company and several volunteer Reddit moderators. “It is users who upvote and downvote content, and thereby determine which posts gain prominence and which fade into obscurity.”

People would stop using Reddit, and moderators would stop volunteering, the brief argued, under a legal regime that “carries a serious risk of being sued for ‘recommending’ a defamatory or otherwise tortious post that was created by someone else.”

While this week’s oral arguments won’t be the end of the debate over Section 230, the outcome of the cases could lead to hugely significant changes the internet has never before seen — for better or for worse.

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February 18, 2023
Pence says he’s willing to take fight against DOJ subpoena in Trump probe to Supreme Court | CNN Politics

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Former Vice President Mike Pence said Wednesday that he is willing to take his fight against a subpoena for his testimony in the Justice Department’s 2020 election subversion investigation all the way to the Supreme Court.

“I am going to fight the Biden DOJ subpoena for me to appear before the grand jury because I believe it’s unconstitutional and unprecedented,” Pence told reporters after making a speech in Iowa.

He said he expects former President Donald Trump to bring his own challenge to the subpoena that will raise executive privilege claims. Pence, however, intends to fight the subpoena under the Constitution’s Speech or Debate Clause, which shields legislators from certain law enforcement actions targeting conduct related to their legislative duties.

While other witnesses have raised Speech or Debate Clause argument in efforts to resist subpoenas in the DOJ probe and in the other investigations into January 6, 2021, Pence plans to invoke the clause in relation to his role as president of the Senate – which is believed to be untrod legal ground.

In that role, he presided over Congress’ certification of the 2020 election results on January 6, 2021.

“On the day of January 6, I was acting as President of the Senate, presiding over a Joint Session, described in the Constitution itself,” Pence said. “And so, I believe that that Speech and Debate Clause of the Constitution actually prohibits the executive branch from compelling me to appear in a court, as the Constitution says, or in any other place. And we’ll stand on that principle and we’ll take that case as far as it needs to go, if need be to the Supreme Court of the United States, because to me, it’s – it’s an issue of the separation of powers.”

He said that over the last “several months,” his team had made it clear to the Justice Department that he believed the Speech or Debate Clause precluded a subpoena for his testimony.

CNN previously reported on Pence’s plans to raise claims under the Speech or Debate Clause.

Pence also noted that he has written and spoken publicly about the events leading up to the January 6 certification vote. But, he said, “if we were to accede to accept a subpoena for appearance before a grand jury or a trial, I believe that would diminish the privileges enjoyed by any future vice president, either Democrat or Republican. I simply will not do that.”

Pence first spoke publicly about his plans to fight the subpoena at an event in Minneapolis earlier Wednesday, saying that his fight was about ” separation of powers” and “defending the prerogatives that I had as president of the Senate.”

“My fight is on the separation of powers. My fight against the DOJ subpoena very simply is on defending the prerogatives that I had as president of the Senate to preside over the Joint Session of Congress on January 6,” Pence told reporters in Minneapolis.

“For me this is a moment where you have to decide where you stand and I stand on the Constitution of the United States,” he added.

Pence is one of several former members of Trump’s inner circle whose testimony federal investigators have sought, as they scrutinize the events leading up to and during the January 6, 2021, riot at the Capitol. That probe, as well as the federal investigation into Trump’s handling of documents from his White House that were found at Mar-a-Lago, have taken a more aggressive tack since special counsel Jack Smith took over both investigations.

This story has been updated with additional information.

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February 15, 2023
Supreme Court under fresh pressure to adopt code of ethics | CNN Politics

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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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February 9, 2023
Exclusive: Supreme Court justices used personal emails for work and ‘burn bags’ were left open in hallways, sources say | CNN Politics

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Long before the leak of a draft opinion reversing Roe v. Wade, some Supreme Court justices often used personal email accounts for sensitive transmissions instead of secure servers set up to guard such information, among other security lapses not made public in the court’s report on the investigation last month.

New details revealed to CNN by multiple sources familiar with the court’s operations offer an even more detailed picture of yearslong lax internal procedures that could have endangered security, led to the leak and hindered an investigation into the culprit.

Supreme Court employees also used printers that didn’t produce logs – or were able to print sensitive documents off-site without tracking – and “burn bags” meant to ensure the safe destruction of materials were left open and unattended in hallways.

“This has been going on for years,” one former employee said.

The problem with the justices’ use of emails persisted in part because some justices were slow to adopt to the technology and some court employees were nervous about confronting them to urge them to take precautions, one person said. Such behavior meant that justices weren’t setting an example to take security seriously.

The justices were “not masters of information security protocol,” one former court employee told CNN.

In a statement attached to the final report, the court called the leak a “grave assault” on the court’s legitimacy and the marshal of the court issued a road map to improve security.

The report and the new revelations of weak protocols come as the court is trying to protect its own legitimacy after an embarrassing leak and allegations (prompted by the recent rash of high profile cases breaking along familiar ideological lines) that it has simply become another political branch. The 20-page report and its still secret “Annex A” raised some questions as to whether the entire investigation should have been outsourced to someone without close ties to the court.

Former Secretary of Homeland Security Michael Chertoff reviewed and endorsed the Supreme Court’s internal investigation into the leak. However, the court did not disclose Chertoff had been paid at least $1 million in recent years to perform security assessments for the court.

The court declined to comment.

In her report last month, Supreme Court Marshal Gail Curley noted that the “court’s current method of destroying court sensitive documents has vulnerabilities that should be addressed.”

Three former employees told CNN of loose security around burn bags that are supplied to chambers to deal with sensitive documents. A burn bag is a security bag that holds sensitive documents which will ultimately be destroyed by fire or shredding.

There was no uniform rule that established a procedure for these paper bags with red stripes. Instead, the justices each have their own protocols. According to a source familiar with the court’s security practices, employees have the option to use the burn bags which are later taken to the basement of the building and emptied into locked bins so that they can be retrieved by a shredding company.

Another source questioned how the burn bags were handled before they were collected. The source said some colleagues would staple a burn bag shut. Others simply filled them to capacity and left them near their desks. But some burn bags were simply left in the hallway outside of chambers, presumably so that they could be taken to the basement. It would not have been difficult, the source suggested, for someone with access to the non-public area of the court to access sensitive documents.

Another vulnerability outlined by Curley was printer logs meant to track document production. A former employee highlights something that Curley did not detail: employees who had VPN access could print documents from any computer, making it difficult to track copies. Curley made an important concession in the report that some locally connected printers only logged the last 60 documents printed.

A look at the timeline of the leak reveals how such a system would be problematic for investigators.

That’s because the initial draft was distributed internally on February 10, 2022. But the leak investigation only started in May when Politico published the draft opinion. Some of those print logs would almost surely no longer exist because the 60-document threshold had been reached.

Curley did not go into great detail, but she did suggest the court “institute tracking mechanisms” in the future.

Another potential problem revolved – especially during Covid – around the possibility that opinions could leave the building. According to the report, Court Information System User Guidelines prohibit “attempting to leave facilities with Court Sensitive Information (hard copy or electronic) without proper authorization.”

But during Covid many such regulations were necessarily relaxed. And even with the rule in place, one source said, there were no mechanisms to check what was actually being taken from the court. To be sure, the hallways in the areas of the court that are closed to the public were guarded and protected by doors with a numerical code necessary to enter, but the code wasn’t necessarily changed very often.

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February 4, 2023
Law barring people with domestic violence restraining orders from having guns is unconstitutional, court rules | CNN Politics

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A federal law that prohibits people subject to domestic violence restraining orders from possessing firearms is unconstitutional, a conservative-leaning appeals court ruled Thursday.

The ruling is the latest significant decision dismantling a gun restriction in the wake of the Supreme Court’s expansion of Second Amendment rights last year in the New York State Rifle & Pistol Association, Inc. v. Bruen decision.

The 5th US Circuit Court of Appeals said that the federal law targeting those believed to pose a domestic violence threat could not stand under the Bruen test, which requires that gun laws have a historical analogy to the firearm regulations in place at the time of the Constitution’s framing.

“Through that lens, we conclude that (the law’s) ban on possession of firearms is an ‘outlier’ that our ancestors would never have accepted,” the 5th Circuit said.

The Justice Department signaled Thursday night that it plans to appeal the ruling. Attorney General Merrick Garland said in a statement that Congress had determined the statute “nearly 30 years ago.”

“Whether analyzed through the lens of Supreme Court precedent, or of the text, history, and tradition of the Second Amendment, that statute is constitutional. Accordingly, the Department will seek further review of the Fifth Circuit’s contrary decision,” he said.

The Justice Department did not specify its next step in seeking review of the ruling, which could include asking the 5th US Circuit Court of Appeals for an en banc rehearing by all the judges on the court, or asking the US Supreme Court to take up an appeal.

The court’s opinion was written by Judge Cory Todd Wilson, who was appointed by former President Donald Trump. He was joined by Reagan-appointee Judge Edith Jones and Judge James Ho, another Trump appointee who also wrote a concurrence.

The 5th Circuit panel was not persuaded by the historical parallels put forward by the US Justice Department, which was defending the conviction of a person who possessed a firearm while under a domestic violence restraining order that had been imposed after he was accused of assaulting his ex-girlfriend. The Justice Department argued that the domestic violence law was analogous to 17th-and 18th century regulations that disarmed “dangerous” persons.

“The purpose of these ‘dangerousness’ laws was the preservation of political and social order, not the protection of an identified person from the specific threat posed by another,” the 5th Circuit opinion read. “Therefore, laws disarming ‘dangerous’ classes of people are not ‘relevantly similar’” to “serve as historical analogues.”

A spokesperson for the Justice Department did not immediately respond to a CNN inquiry. If the 5th Circuit’s ruling is appealed, it could set up another showdown over gun rights at the Supreme Court.

Steve Vladeck, a CNN Supreme Court analyst and professor at the University of Texas School of Law, said clarity from the court is necessary.

“One of two things is true: Either this kind of blind, rigid, context-free, and common-sense-defying assessment of history is exactly what the Supreme Court intended in its landmark ruling last June in Bruen, or it isn’t,” Vladeck said.

“Either way, it’s incumbent upon the justices in the Bruen majority to clarify which one they meant – and to either endorse or reject the rather terrifying idea that individuals under an active domestic violence-related restraining order are nevertheless constitutionally entitled to possess firearms,” he added.

The defendant challenging his conviction, Zackey Rahimi, had lost in an earlier round before the 5th Circuit, before the Supreme Court issued its Bruen ruling last year. The previous 5th Circuit opinion was withdrawn after the Bruen decision was handed down, and the appeals court did another round of briefing directed at the new test.

This story has been updated with additional developments.

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February 2, 2023
Kavanaugh says he’s ‘optimistic’ about the Supreme Court and trashes US News law school rankings | CNN Politics

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CNN
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Justice Brett Kavanaugh said this week that he is “optimistic” about the court, his colleagues, and the country in the first-known public comments any justice has made off the bench since the release of an investigative report into the leak of a draft opinion reversing Roe v. Wade.

Kavanaugh, speaking at Notre Dame Law School, did not directly reference the leak investigation, but he said that while judges get a lot of criticism and “heat” at times, he aspires to be an optimist.

“I’m optimistic about the court, I’m optimistic about the country, I’m optimistic about my colleagues,” he said.

Separately, the justice also presented a dissent of US News & World Report’s law school rankings.

His comments were delivered on Monday but only released publicly on Thursday in a video from Notre Dame.

Kavanaugh reminisced about his time working as a lawyer at the White House during the George W. Bush administration and he said he learned from the former president not to worry about “today’s criticism, just stay optimistic about the future.”

Kavanaugh also said that the unusually long lag in the release of the court’s first opinion of the term was simply due to a “coincidence” concerning “which mix of cases” were argued in October and November.

The court only released its first opinion this week – breaking recent tradition.

Court watchers had speculated that the reason the court had waited much longer than usual to issue an opinion this term was that it was anticipating the release of the investigative report. That report was ultimately produced on January 19, with the justices announcing that the Marshal of the court had been unable to identify the person responsible for the leak.

Kavanaugh suggested there was no connection between the report and the lag in opinions.

Kavanaugh also said that the relationships between justices were good despite an array of divisive opinions that were released last term, including the abortion decision, that largely broke down along ideological lines.

“We work well together, we get along together,” he said.

And he praised his two most recent colleagues. He said that he had been charged with throwing a dinner for Justice Amy Coney Barrett to welcome her to the bench and he called her an “unusually good person.” He said that Justice Ketanji Brown Jackson is always “fully prepared” and off to a “great start.”

The leak of the draft opinion last spring triggered protests across the country. In June, a man was arrested in Kavanaugh’s neighborhood and later charged with attempted murder of a Supreme Court justice. Kavanaugh has never made any public remarks about the incident.

Gail Curley, the marshal of the Supreme Court who was tasked last term with investigating the leak, said in her report that her team conducted 126 formal interviews of 97 Supreme Court employees. The employees were asked to sign affidavits, under penalty of perjury, to affirm that they did not disclose the draft opinion and had provided all “pertinent information” related to the disclosure of the draft.

In a separate statement Curley clarified that she had spoken to all nine justices, found nothing to implicate them or their spouses, and declined to require them to sign affidavits.

Kavanaugh also launched into a lengthy criticism of US News & World Report’s ranking of law schools after being asked.

The publication announced earlier this month that it was changing the formula used to determine its list of best law schools after several prestigious institutions – including Kavanaugh’s own Yale Law School – decided to bow out of the famed rankings.

“I think those ratings are very problematic. I think they’re based on things, from what I understand, that are very amorphous, very subjective, very word-of-mouth. Factors that don’t correlate well with the education that you’re actually receiving,” Kavanaugh said.

“And I find them highly problematic. The reputation score – that’s kind of a joke, isn’t it? I mean that’s – who, who has the knowledge of all the different scores that’s judged to give anything approaching a good analysis of that?” the justice added.

“I should probably stop but I’m going to say it anyway,” Kavanaugh added. “They look at some – you know, how much money is spent on this versus that and the library. You know, does that really show whether a student’s getting a better education at school A or school B?”

Asked if he takes the publication’s rankings into account when he’s looking at law clerks, Kavanaugh replied: “No.”

In a letter to law school deans published earlier this month, the publication announced that it would place less importance on surveys that ask academic administrators, lawyers and judges to rate the quality of institutions and more emphasis on measures such as bar exam pass rates and employment outcomes. The changes stem from conversations with more than 100 law school deans and representatives, according to the letter.

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January 26, 2023
Brett Kavanaugh Fast Facts | CNN

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Here’s a look at the life of Supreme Court Justice Brett Kavanaugh.

Birth date: February 12, 1965

Birth place: Washington, DC

Birth name: Brett Michael Kavanaugh

Father: Everett Edward Kavanaugh Jr., president of a trade association

Mother: Martha Kavanaugh, teacher, prosecutor and judge

Marriage: Ashley (Estes) Kavanaugh

Children: Liza and Margaret

Education: Yale College, B.A., 1987, graduated cum laude; Yale Law School, J.D., 1990

Religion: Roman Catholic

Regularly taught courses on separation of powers and on the Supreme Court at Harvard Law School.

Kavanaugh finished the Boston Marathon in 2010 and in 2015.

1990-1991 – Law clerk to Judge Walter Stapleton of the US Court of Appeals for the Third Circuit.

1991-1992 – Clerks for Judge Alex Kozinski of the US Court of Appeals for the Ninth Circuit.

1992-1993 – Attorney with the Solicitor General’s Office at the Department of Justice.

1993-1994 – Serves as law clerk to Justice Anthony Kennedy.

1994-1997 and 1998 – Associate counsel for Independent Counsel Kenneth Starr’s Whitewater investigation, which leads to the impeachment of President Bill Clinton.

1997-1998 and 1999-2001 – Partner at Kirkland & Ellis in Washington, DC.

2001-2003 – Serves as associate counsel and then senior associate counsel to President George W. Bush.

July 25, 2003 – Bush nominates Kavanaugh to the US Court of Appeals for the District of Columbia Circuit, but the Senate doesn’t vote on Kavanaugh’s nomination for almost three years.

July 2003-May 2006 – Serves as assistant and staff secretary to Bush.

May 26, 2006 – The Senate confirms Kavanaugh to the DC Circuit Court of Appeals by a vote of 57-36.

May 30, 2006 – Sworn in by Kennedy.

July 9, 2018 – President Donald Trump announces Kavanaugh as his nominee to fill the Supreme Court vacancy created by Kennedy’s retirement.

September 4-7, 2018 – Confirmation hearings are held on Capitol Hill. A Senate Judiciary Committee vote is tentatively slated for the week of September 17.

September 16, 2018 – The Washington Post publishes an article about a California psychology professor who accuses Kavanaugh of attempting to rape her when they were both teenagers at a house party during the early 1980s. Christine Blasey Ford says she initially sent a letter to Senator Dianne Feinstein about the incident when Kavanaugh’s name was included on a shortlist for the Supreme Court. Ford tells the newspaper she initially did not want to go public but she decided to talk on the record because her letter to Feinstein had been leaked to the media. Kavanaugh denies that such an incident ever took place.

September 23, 2018 – The New Yorker magazine publishes a report about a second allegation of sexual misconduct, prompting Feinstein to call for a postponement of confirmation proceedings. The magazine article centers on a college classmate from Yale, Deborah Ramirez who says Kavanaugh exposed himself to her while a group of students were drinking at a party in a dorm during the 1983-1984 academic year. Kavanaugh denies the allegation and a White House spokeswoman dismisses the claim as uncorroborated.

September 27, 2018 – Kavanaugh and Ford testify during an all-day hearing before the Senate Judiciary Committee.

September 28, 2018 – GOP Senator Jeff Flake, a member of the Judiciary Committee, agrees to vote yes, paving the way to a floor vote but he says the FBI should reopen its background investigation of Kavanaugh and spend a week looking into claims made by Kavanaugh’s accusers. Trump later agrees to direct the FBI to reopen its background check but the probe will be limited in scope and must be completed in a week.

October 3, 2018 – The FBI completes its supplemental background check and sends the information to the Senate late in the day.

October 4, 2018 – The Wall Street Journal publishes an op-ed by Kavanaugh in which argues that he is an independent, impartial judge. He expresses regret for a few of his statements during the September 27 hearing, explaining that he was frustrated and emotional. He pledges, going forward, that litigants and colleagues will be treated with respect. The same day, retired Justice John Paul Stevens says that Kavanaugh’s comments during his confirmation hearings suggest bias. Stevens says Kavanaugh should not serve on the Supreme Court.

October 6, 2018 – The Senate confirms Kavanaugh with a 50-48 vote. He is sworn in by Chief Justice John Roberts during a private ceremony. The vote takes place amid public protests for and against Kavanaugh’s confirmation.

September 14, 2019 – The New York Times publishes an article adapted from a forthcoming book, “The Education of Brett Kavanaugh” that contains a new allegation of college sexual misconduct. According to the report, the FBI did not investigate the new allegation and the bureau did not speak with witnesses to verify Ramirez’s original claim.

July 2020 – An exclusive CNN report says Kavanaugh urged his colleagues in a series of private memos this spring to consider avoiding decisions in major disputes over abortion and Democratic subpoenas for Trump’s financial records, according to multiple sources familiar with the inner workings of the court.

October 28, 2020 – Kavanaugh tweaks a line in his controversial opinion on Wisconsin mail-in voting, after he received criticism for incorrectly saying Vermont had not changed its election rules due to the Covid-19 pandemic.

July 22, 2021 – Senator Sheldon Whitehouse releases a letter from the FBI disclosing that it received more than 4,500 tips on a phone line in 2018 as part of a background investigation Kavanaugh and provided “relevant” ones to former President Trump’s White House counsel.

October 1, 2021 – The Supreme Court announces that Kavanaugh has tested positive for Covid-19. This is the first publicly known case of coronavirus among the high court’s justices. Kavanaugh was fully vaccinated, according to the court.

June 8, 2022 – Nicholas John Roske is arrested near Kavanaugh’s house, after calling emergency authorities to say he was having suicidal thoughts, had a firearm in his suitcase, and had traveled from California “to kill a specific US Supreme Court Justice.” The Justice Department charges him with attempting to kidnap or murder a US judge.

January 20, 2023 – “Justice,” a documentary examining the sexual assault allegations against Kavanaugh, premieres at the Sundance Film Festival.

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January 26, 2023
Meta, Twitter, Microsoft and others urge Supreme Court not to allow lawsuits against tech algorithms | CNN Business

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CNN
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A wide range of businesses, internet users, academics and even human rights experts defended Big Tech’s liability shield Thursday in a pivotal Supreme Court case about YouTube algorithms, with some arguing that excluding AI-driven recommendation engines from federal legal protections would cause sweeping changes to the open internet.

The diverse group weighing in at the Court ranged from major tech companies such as Meta, Twitter and Microsoft to some of Big Tech’s most vocal critics, including Yelp and the Electronic Frontier Foundation. Even Reddit and a collection of volunteer Reddit moderators got involved.

In friend-of-the-court filings, the companies, organizations and individuals said the federal law whose scope the Court could potentially narrow in the case — Section 230 of the Communications Decency Act — is vital to the basic function of the web. Section 230 has been used to shield all websites, not just social media platforms, from lawsuits over third-party content.

The question at the heart of the case, Gonzalez v. Google, is whether Google can be sued for recommending pro-ISIS content to users through its YouTube algorithm; the company has argued that Section 230 precludes such litigation. But the plaintiffs in the case, the family members of a person killed in a 2015 ISIS attack in Paris, have argued that YouTube’s recommendation algorithm can be held liable under a US antiterrorism law.

In their filing, Reddit and the Reddit moderators argued that a ruling enabling litigation against tech-industry algorithms could lead to future lawsuits against even non-algorithmic forms of recommendation, and potentially targeted lawsuits against individual internet users.

“The entire Reddit platform is built around users ‘recommending’ content for the benefit of others by taking actions like upvoting and pinning content,” their filing read. “There should be no mistaking the consequences of petitioners’ claim in this case: their theory would dramatically expand Internet users’ potential to be sued for their online interactions.”

Yelp, a longtime antagonist to Google, argued that its business depends on serving relevant and non-fraudulent reviews to its users, and that a ruling creating liability for recommendation algorithms could break Yelp’s core functions by effectively forcing it to stop curating all reviews, even those that may be manipulative or fake.

“If Yelp could not analyze and recommend reviews without facing liability, those costs of submitting fraudulent reviews would disappear,” Yelp wrote. “If Yelp had to display every submitted review … business owners could submit hundreds of positive reviews for their own business with little effort or risk of a penalty.”

Section 230 ensures platforms can moderate content in order to present the most relevant data to users out of the huge amounts of information that get added to the internet every day, Twitter argued.

“It would take an average user approximately 181 million years to download all data from the web today,” the company wrote.

If the Supreme Court were to advance a new interpretation of Section 230 that safeguarded platforms’ right to remove content, but excluded protections on their right to recommend content, it would open up broad new questions about what it means to recommend something online, Meta argued in its filing.

“If merely displaying third-party content in a user’s feed qualifies as ‘recommending’ it, then many services will face potential liability for virtually all the third-party content they host,” Meta wrote, “because nearly all decisions about how to sort, pick, organize, and display third-party content could be construed as ‘recommending’ that content.”

A ruling finding that tech platforms can be sued for their recommendation algorithms would jeopardize GitHub, the vast online code repository used by millions of programmers, said Microsoft.

“The feed uses algorithms to recommend software to users based on projects they have worked on or showed interest in previously,” Microsoft wrote. It added that for “a platform with 94 million developers, the consequences [of limiting Section 230] are potentially devastating for the world’s digital infrastructure.”

Microsoft’s search engine Bing and its social network, LinkedIn, also enjoy algorithmic protections under Section 230, the company said.

According to New York University’s Stern Center for Business and Human Rights, it is virtually impossible to design a rule that singles out algorithmic recommendation as a meaningful category for liability, and could even “result in the loss or obscuring of a massive amount of valuable speech,” particularly speech belonging to marginalized or minority groups.

“Websites use ‘targeted recommendations’ because those recommendations make their platforms usable and useful,” the NYU filing said. “Without a liability shield for recommendations, platforms will remove large categories of third-party content, remove all third-party content, or abandon their efforts to make the vast amount of user content on their platforms accessible. In any of these situations, valuable free speech will disappear—either because it is removed or because it is hidden amidst a poorly managed information dump.”

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January 22, 2023
Lead Supreme Court investigator on Dobbs leak makes clear she spoke to all nine justices | CNN Politics

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CNN
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The Supreme Court marshal who investigated last year’s leak of a draft opinion overturning Roe v. Wade has revealed that she spoke to all nine justices and found nothing to implicate them or their spouses.

Friday’s remarks by Marshal Gail Curley come after the court’s investigative report on the leak, which was released Thursday, did not specify whether justices had been interviewed, leading to questions as to whether investigators had considered their potential role.

“During the course of the investigation, I spoke with each of the Justices, several on multiple occasions,” Curley said in a statement. “The Justices actively cooperated in this iterative process, asking questions and answering mine.”

Curley added: “I followed up on all credible leads, none of which implicated the Justices or their spouses. On this basis, I did not believe that it was necessary to ask the Justices to sign sworn affidavits.”

Curley said her team conducted 126 formal interviews of 97 Supreme Court employees. The employees were asked to sign affidavits, under penalty of perjury, to affirm that they did not disclose the draft opinion and had provided all “pertinent information” related to the disclosure of the draft.

The court announced Thursday that it has yet to determine who leaked the draft opinion to the media last year, but at least 90 people had access to the document at one point.

According to the investigative report, a few employees admitted to telling their spouses about the draft opinion or the vote count of the justices. While the report notes that such actions violated the court’s confidentiality rules, it does not say whether that led to further investigation or disciplinary action.

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January 21, 2023
Supreme Court embarrassed by the opinion leak is embarrassed again | CNN Politics

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CNN
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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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January 20, 2023
Trump struggles with the new politics of abortion as a triumphant March for Life arrives in Washington | CNN Politics

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CNN
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The anti-abortion “March for Life” for decades demonstrated to Republicans that they could not reach the Oval Office without the support of the anti-abortion movement.

On Friday, marchers will gather in Washington with a decades-long mission accomplished, after the Supreme Court’s removal of a constitutional right to an abortion by overturning the Roe v. Wade decision last year.

That means this year’s march will be a time for celebration but also of debate about where the movement goes next with some campaigners seeking to restrict the procedure everywhere. But such a refocused goal carries big risks. Democrats after all belatedly leveraged their own energy over abortion in the midterm elections in a backlash against the right-wing Supreme Court majority that helped stave off a big Republican midterm election wave.

The March for Life also comes at an extraordinary moment when Donald Trump, the president who did more than any other to end Roe after a pact with social conservative voters that helped win him the 2016 GOP nomination, has launched an extraordinary attack on evangelical leaders he sees as insufficiently loyal, as CNN’s Gabby Orr, Kristen Holmes and Kaitlan Collins reported this week.

“Nobody has ever done more for Right to Life than Donald Trump. I put three Supreme Court justices, who all voted, and they got something that they’ve been fighting for 64 years, for many, many years,” Trump said in an interview on Real America’s Voice Monday, referring to the overturning of federal abortion rights.

“There’s great disloyalty in the world of politics and that’s a sign of disloyalty,” Trump told conservative journalist David Brody.

The comment was a window into Trump’s psychology, revealing his transactional understanding of politics and his highly developed sense of fealty he sees owed to him.

The former president is specifically angry over the failure to immediately endorse his 2024 White House bid by some evangelical leaders who remain influential figures in the conservative movement. Trump’s third White House run has so far failed to pick up significant energy.

But Trump has also shown signs recently of questioning whether his purported greatest domestic achievement – the building of a generational conservative Supreme Court majority and its subsequent overturning of Roe – may end up hindering his hopes of a return to the White House in 2025. He wrote on his Truth Social platform earlier this month that the “abortion issue” had been poorly handled by many Republicans, especially those who insisted on no exceptions in the case or rape, incest or life of the mother, which he said “lost large numbers of voters.”

The former president’s comments are backed by exit polls from November’s midterms that showed more than a quarter of voters listing abortion as a top issue. About 61% said they were unhappy with the Supreme Court’s overturning of Roe v. Wade, and about 7 in 10 of those voters backed a Democratic House candidate.

In his Truth Social comments, Trump appeared to be seeking to offload blame for the Republicans’ failure to win back the Senate and the party’s smaller-than-expected House majority. Trump took on waves of criticism after the election for promoting extreme, election denying candidates who often lost in swing states in the midterm elections.

But it is notable seeing Trump navigate the shifting politics of abortion and apparently sizing up how it could affect his political prospects in future. After all, he was once unapologetically pro-choice before his foray into Republican politics dictated a shift in position and led to the bargain with evangelicals, which included an effective commitment to appoint anti-abortion justices to the Supreme Court in return for the crucial votes of social conservatives.

In the past, Trump has been a fixture of the March for Life rally, and in 2020, he became the first sitting president to attend in person as he geared up for his reelection race. He told marchers that “unborn children have never had a stronger defender in the White House.”

There is no sign yet that he will call into Friday’s event, which will include a detour to the US Capitol on its usual route to the Supreme Court to underline how Congress is now a focus of the movement, as Democrats seek to codify Roe v. Wade protections into law.

Trump’s comments on abortion and his feuding with evangelical leaders raise the question of whether the former president has made a tactical error and is harming his 2024 candidacy by targeting a critical GOP primary voting bloc at a time when there are growing questions over whether he is still the dominant force in Republican politics.

Ralph Reed, the executive director of the Faith and Freedom Coalition, told CNN that there is “no path to the nomination without winning the evangelical vote. Nobody knows that better than President Trump because, to the surprise of almost everyone, he won their support in 2016.”

This question is especially acute in Iowa, the first-in-the-nation caucuses – for Republicans at least – in the 2024 primary season, which will be the first test of the ex-President’s hold over conservatives and evangelicals especially.

Trump didn’t actually win in Iowa in 2016, coming second to Texas Sen. Ted Cruz and just beating out Florida Sen. Marco Rubio, and the state has often not been a true barometer of how the GOP nominating contest will go.

However, it will take on extra significance in 2024 and is likely to be seen as a strong indicator of Trump’s appeal to the conservative base. A loss there would create a painful narrative as he headed into subsequent contests – especially since he strongly carried the state in the general elections in 2016 and 2020.

And it’s easy to come up with a list of potential GOP candidates that might have appeal in the state if they challenge Trump, including Florida Gov. Ron DeSantis, South Dakota Gov. Kristi Noem, former Vice President Mike Pence or Cruz once again. Only Trump so far is a declared 2024 Republican presidential candidate.

Trump would be in an odd situation in 2024, in that he is in many ways effectively an incumbent given his strong support in the GOP and the fact that he didn’t go away after losing reelection. But at the same time, he’s not a sitting president and looks likely to face a contested primary and so may be more exposed in early contests.

Still, while some conservative base voters might want to move on, there’s still strong goodwill among many toward Trump, gratitude for the change he brought during his term and admiration for his attitude.

“Many people forgave him for his misstatements and his missteps because they generally liked his ability to fight, even if that became a cliché for some people, Trump’s detractors,” said Timothy Hagle, an associate professor of political science at the University of Iowa who is an expert on the state’s politics.

This gets to point often missed about Trump. For many of his supporters, he offered an emotional as much as a political connection. His willingness to say what many grassroots conservatives thought and to assail institutions they despised, like the media or Washington experts and other elites, were as important as many of his often-ill-defined individual political positions.

And it’s also often forgotten that evangelical voters in places like Iowa do not necessarily vote as a bloc, or according to what their leaders or pastors recommend and may prioritize issues such as taxes over social questions if a candidate is deemed to be generally acceptable. That may give Trump more leeway than more conventional candidates in departing from traditional conservative orthodoxy even over abortion.

Still, Hagle said, even small numbers of disaffected Iowa voters could make a difference to Trump’s chances in the state if they don’t show up for him, as could more mainstream GOP caucus voters who may be taking a look at other aspects of his candidacy and those of potential rivals.

“Are they going to support Trump because he fights, or because of his economic position or his position on the border?” Hagle said. “The abortion stuff may not be as important to them, or will they go a different direction at this point?”

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January 20, 2023
‘Command your troops, damn it!’ How a series of security failures opened a path to insurrection in Brazil | CNN

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CNN
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A sea of people, draped in the yellow and green of the Brazilian flag, surge onto the roof of the country’s modernist congressional building in the capital Brasilia, a video shared on social media shows.

In the foreground, officers from the military police of Brazil’s Federal District, which includes Brasilia, can be seen standing, chatting or filming the crowds in the distance.

Their calm belies the chaos unfolding on January 8. For around four hours, thousands of far-right supporters of former President Jair Bolsonaro stormed all three branches of Brazil’s government – Congress, the Supreme Court, and presidential palace – overwhelming security forces and calling for the leftist incumbent Luiz Inácio Lula da Silva to be ousted.

The violence has shocked the country, with many wanting answers as to how so many people managed to enter some of the most highly securitized buildings in the country, with practically no resistance. Questions are mounting as to whether members of the security forces tasked with protecting the area and their leaders were just overstretched, incompetent or even actively assisted the protesters.

Top Brazilian officials say that pre-agreed security plans were not carried out on the day.

CNN has analyzed a series of videos and livestreams posted on social media to explore the security failures that allowed an insurrection to take place with such extraordinary ease and found that some officers appeared friendly to the rioters, while many others seem woefully underprepared for the angry mob. CNN has not identified and spoken to the officers in the videos.

Videos show some police officers standing and watching the protestors as they stormed Congress, one even filmed the events. Credit: YouTube, Twitter and Telegram.

Authorities investigating the riots, like the Supreme Court, have pointed fingers at officials in Brasilia, and several Federal District security chiefs have been fired or issued with arrest warrants for alleged collusion since the Sunday riots.

“The Brasilia police neglected [the attack threat], Brasilia’s intelligence neglected it,” Lula claimed one day after the siege. He said that from the footage it was easy to see “police officers talking to the attackers. There was an explicit connivance of the police with the demonstrators.”

Suspicions of “connivance” have been fueled by his predecessor Bolsonaro’s close relationship with the military during his presidency, filling his then-cabinet with military chiefs. In the weeks leading up to the siege, supporters of the ex-leader and former army captain – who never explicitly conceded his election loss in October – camped outside army barracks across Brazil, calling for a military intervention to overturn Lula’s victory.

Bolsonaro has made false claims of election fraud, sowing doubt in the legitimacy of the election. He left for Florida more than a week before the insurrection.

Lula on Thursday also accused some people in the armed forces of complicity. “There were many people complicit in this. There were many from the (military police), many from the armed forces complicit,” he said during a press conference.

The Brazilian president said he doesn’t think of the events of January 8 as a “coup” but as a “smaller thing, a band of crazy people who haven’t realized that the election is over.”

The military police of the Federal District have not responded to CNN’s questions about the alleged security failures of their forces. Nor has the Army Command in Brasilia – which has yet to make a public statement on the riots.

Videos taken on January 8 suggest a reduced security presence compared to Lula’s inauguration a week before, at the same government complex, when more than 8,000 troops from military and civil forces were deployed.

On January 8, there were just 365 military police officers working in the area. After Lula authorized a federal intervention at around 6 p.m. local that evening, another 2,913 were summoned, a caretaker Federal District spokesperson told CNN. The leadership of the office has changed since the January 8 riots.

The army and civil police forces did not respond to CNN’s request for information on how many army troops and police forces were deployed to the area on Sunday.

The military police are investigating the events on January 8 and “will start procedures to investigate” the alleged conduct of “police agents who behaved differently from (how) they were supposed to,” Ricardo Cappelli, the caretaker head of security for the Federal District of Brasilia, who got the role Sunday after his predecessor was fired, said this week.

Sunday’s protests had been openly organized online days before and intelligence services were aware of their plans. Telegram conversations seen by CNN show people messaging as early as January 5 about their intentions to storm Brazil’s Congress.

One post mentions a plan to use the Zello phone app, which works like a walkie talkie, if the internet was disrupted. The same app was used by some US Capitol rioters on January 6, 2021.

Several others shared detailed maps of the parliamentary area, labeling clearly the Congress and Senate buildings as the assembly point.

Brazil’s intelligence agency said it issued daily alerts ahead of January 8 to the government and the federal district government, warning the protests would be large and violent, CNN Brasil reports.

Their intelligence was based on a warning raised by the country’s transport agency that an unusual volume of buses had been chartered to Brasilia. Both the Minister of Justice Flávio Dino and then-Federal District Governor Ibaneis Rocha, a Bolsonaro ally, were notified, said the intelligence agency.

Despite the warnings, on January 7, Rocha told a Federal District news portal, Metropoles, that the protest would go ahead on the Esplanade – a grassy stretch surrounded by governmental buildings that leads directly to Brazil’s seats of power.

In a press conference a day after the riot, Justice Minister Dino said special security plans had been agreed upon with the Federal District – which handles the defense of the governmental complex and was led by Rocha – but did not materialize on January 8. There was a “change in administrative orientation yesterday in which the planning, which did not allow people to enter the Esplanade, was changed at the last minute,” he said.

Rocha was removed from his post for three months on Sunday. He said he respected the decision in an official statement and had also apologized to officials, including Lula, for what happened that day, saying his team “did not believe at all that the demonstrations would take on the proportions that they did.” CNN has reached out to Rocha for comment.

When protesters, as planned, turned out in droves on January 8, they were met with little resistance.

Beginning from their encampment outside the army headquarters, they walked over 7 kilometers (4.3 miles) down Brasilia’s main avenue, the Monumental Axis, to Congress.

Prior to the breach of Congress, a long line of protesters march to the government complex. In one video, a military police officer appears to give a thumbs up while shaking hands with the pro-Bolsonaro crowd walking down the avenue. Some are even patting officers on the back.

Military police attempted to stop the protesters by the Esplanade of Ministries along Eixo Monumental at around 2:25 p.m. local time, live video posted on YouTube by a protester and reviewed by CNN shows. But they were quickly over-run by protesters, who broke through the barricades. Police attempted to pepper spray a few of them as they tried to maintain the barricade but were overwhelmed.

The time the crowds arrived outside Congress at around 2:45 p.m. local time. Videos showed some federal and military police units further attempting to block their way, but they were severely outnumbered.

Chaos ensued.

Another attempt by Brasilia’s military police to use pepper spray on protesters failed. The officers, standing behind a line of metal barricades, were quickly overwhelmed as the crowd surged through, tossing the barricades to the ground.

Police confront protestors with pepper spray as they approach Congress but are quickly overwhelmed. Credit: Twitter

Free to roam in Praça dos Três Poderes (Three Powers Square), thousands of Bolsonaro supporters climbed the ramp leading to the Congress, which houses the Senate and Chamber of Deputies. They entered the buildings just before 3 p.m.

Videos from inside show overturned chairs and documents strewn on the floor as the crowds march through chanting pro-Bolsonaro slogans.

With the barricades gone, several military police officers simply watched the scene. One even filmed the protesters climbing onto the roof of Congress.

Meanwhile, outside the Congress building two federal police vans sat with smoke billowing from their windows, video shows. One has swerved off the road half-submerged in a lake.

The swarm of protesters also moved to the Supreme Court and the Presidential Palace. Officers seemed once again unable to control the situation. Some on horseback were attacked near the Supreme Court, pulled to the ground and pummeled by rioters.

In the end, the crowd managed to break inside these buildings as well and wreak havoc.

Videos showed little coordination between police divisions and left some officers overwhelmed by the crowds. Credit: TikTok and Telegram

Lula has suggested that someone deliberately left the doors to the palace unlocked. It was “opened for these people to enter because there is no broken door. It means someone facilitated their entry here,” he told reporters Thursday.

While he waits for the dust to settle, “I want to see all the tapes recorded inside the Supreme Court, inside the palace. There were a lot of conniving agents. There were a lot of people from the MP (Military Police) conniving,” he added.

The January 8 videos found online seem to convey the chaos of the moment.

In one video, responders seem to struggle to coordinate and communicate as security forces seem overwhelmed as they try to gain control.

A military police officer shouts at soldiers from the presidential guard battalion to fight the invaders as they stand by the presidential Planalto Palace.

“Command your troops, damn it!” he yells at the battalion commander.

But the soldiers appear hesitant, and their leader remains silent as they struggle to make decisions while confronted by the horde.

In pictures: Bolsonaro supporters storm Brazilian Congress

As it approaches 7 p.m. local time, the police and army finally have things under control. A YouTube livestream shows crowds filing off the roof of Congress and leaving the governmental compound.

Two hours later, Bolsonaro condemns the day’s events, saying “peaceful demonstrations, respecting the law, are part of democracy. However, depredations and invasions… escape the rule.”

Brazil’s response to the riots has been swift. The pro-Bolsonaro encampments outside army barracks were cleared, and a new round of protests on January 11 never materialized.

The Supreme Court agreed to prosecutor’s requests on Friday to investigate Bolsonaro for the alleged involvement in the attacks. His lawyer has rebutted the accusations, saying Bolsonaro always “rejected all illegal and criminal acts … and has always been a defender of the constitution and democracy.”

High level officials have aimed their sights on Bolsonaro allies still working in government, including Anderson Torres, who was effectively in charge of security for the Three Powers Square, where the governmental buildings were located.

Brazil’s Supreme Court on Tuesday ordered the arrest of Torres, who was previously Bolsonaro’s justice minister and assumed the role of security secretary of the Federal District in January, and the district’s former military police commander Fabio Vieira.

The order accuses the pair of attempting a coup d’état, terrorist acts, damage to public property, criminal association, and violent abolition of the rule of law. It also argues “the absence of the necessary policing” during the riots happened due to the “omission and connivance of several authorities in the area of security and intelligence.”

Torres, who was fired on Sunday with Vieira, had traveled to Florida on January 7, a day before the riots. It is unclear if he met with Bolsonaro, who was also in Florida, having left Brazil in December, days before the inauguration of Lula.

The former security secretary has strenuously denied any involvement in the riots. “I deeply regret these absurd hypotheses of any kind of collusion on my part,” he tweeted on Sunday, and wrote days later that he would return to Brazil and fight the charges.

He was arrested on his return to Brazil on Saturday, CNN Brasil reports.

On Thursday, the Federal Police announced that during a search of Torres’ home, it found a draft decree proposing to overturn October’s presidential election. Torres has denied being the author.

CNN has reached out to his lawyer for comment.

Investigators are looking for funders and leaders of the riots, an unenviable task due to the protesters lack of formalized leadership, Michele Prado, an expert on the Brazilian far right, told CNN.

“Despite this fluidity of (protest) leaders and horizontality,” there are thousands of people online who continue to share extremist positions, she added.

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January 14, 2023
Google claims a Supreme Court defeat would transform the internet — for the worse | CNN Business

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An unfavorable ruling against Google in a closely watched Supreme Court case this term about YouTube’s recommendation engine could have sweeping unintended consequences for much of the wider internet, the search giant argued in a legal filing Thursday.

Google, which owns YouTube, is fighting a high-stakes court battle over whether algorithmically generated YouTube recommendations are exempt from Big Tech’s signature liability shield, Section 230 of the Communications Decency Act.

Section 230 broadly protects tech platforms from lawsuits over the companies’ content moderation decisions. But a Supreme Court decision that says AI-based recommendations do not qualify for those protections could “threaten the internet’s core functions,” Google wrote in its brief.

“Websites like Google and Etsy depend on algorithms to sift through mountains of user-created content and display content likely relevant to each user,” the company wrote. “If plaintiffs could evade [Section 230] by targeting how websites sort content or trying to hold users liable for liking or sharing articles, the internet would devolve into a disorganized mess and a litigation minefield.”

In the face of such a ruling, websites could have to choose between intentionally over-moderating their websites, scrubbing them of virtually everything that could be perceived as objectionable, or doing no moderation at all to avoid the risk of liability, Google argued.

Driving the case are claims that Google violated a US antiterrorism law with its content algorithms by recommending pro-ISIS YouTube videos to users. The plaintiffs in the case are the family of Nohemi Gonzalez, who was killed in a 2015 ISIS attack in Paris.

In the filing, Google said “YouTube abhors terrorism” and cited its “increasingly effective actions” to limit the spread of terrorist content on its platform, before insisting that the company cannot be sued for recommending the videos due to its Section 230 liability shield.

The case, Gonzalez v. Google, is viewed as a bellwether for content moderation, and one of the first Supreme Court cases to consider Section 230 since its passage in 1996. Multiple Supreme Court justices have expressed interest in weighing in on the law, which has been broadly interpreted by the courts, defended by the tech industry, and sharply criticized by politicians in both parties.

The Biden administration, in a legal brief last month, argued that Section 230 protections should not extend to recommendation algorithms. President Joe Biden has long called for changes to Section 230, saying tech platforms should take more responsibility for the content that appears on their websites. As recently as Tuesday, Biden published a Wall Street Journal op-ed that urged Congress to amend Section 230.

But in a blog post Thursday, Google General Counsel Halimah DeLaine Prado argued that narrowing Section 230 would increase the threat of litigation against online and small businesses, chilling speech and economic activity on the internet.

“Services could become less useful and less trustworthy — as efforts to root out scams, fraud, conspiracies, malware, violence, harassment, and more are stifled,” DeLaine Prado wrote.

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January 12, 2023
Another ‘radical’ change to the Voting Rights Act could reach the Supreme Court | CNN Politics

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A federal appeals court appears open to further shrinking the scope of the Voting Rights Act in a case that could lead to another major Supreme Court showdown over voting rights.

The 8th US Circuit Court of Appeals at a hearing on Wednesday considered whether private entities – and not just the US Justice Department – can bring lawsuits under a key provision of the law. Two of the three members of the appellate panel asked questions suggesting they were leaning against the idea that the provision, known as Section 2, could be enforced with private lawsuits.

If those seeking a narrowing of the VRA are successful, it would significantly diminish the use of the law to challenge ballot regulations and redistricting maps that are said to be racially discriminatory.

A vast majority of the cases that are brought under the Voting Rights Act – which prohibits election rules that have the intent or effect of discriminating on the basis of race – are brought by private plaintiffs, with the Justice Department facing strained resources and other considerations that limit the number of VRA cases it files to, at most, a few each year.

Last year, however, a Trump-appointed federal judge in Arkansas – running counter to decades of legal practice – said that private parties do not have the ability to sue under the Section 2.

During arguments Wednesday about whether the judge’s ruling should be upheld, Circuit Judges Raymond Gruender and David Stras questioned the attorney arguing in favor of a so-called private cause of action whether the parts of Supreme Court and 8th Circuit opinions that her clients were leaning on were “dicta,” i.e. statements that are not binding on lower courts.

“I am dubious whether that is a holding,” Gruender, an appointee of former President George. W. Bush, said of an 8th Circuit case that ACLU attorney Sophia Lin Lakin argued pointed to the more robust interpretation of VRA enforcement.

Stras, a Trump-appointee, grilled Lakin on more recent cases from the Supreme Court that scaled back private causes of action in other laws.

A decision that blocked private parties’ path to court under the VRA would be a “radical” one, said David Becker, an alum of the Justice Department’s voting section who now leads the Center for Election Innovation & Research.

“It absolutely means it’s more likely that there will be potential partisan mischief that could negatively impact the voters who are protected by the Voting Rights Act,” Becker, who signed a friend-of-the court brief favoring the broader interpretation, told CNN.

A decision from the 8th Circuit is unlikely to come for at least several weeks.

The February 2022 ruling by US District Judge Lee Rudofsky that private parties could not sue under Section 2 is believed to be a first-of-its-kind decision. It emerged from a VRA challenge brought by the Arkansas chapter of the NAACP to Arkansas’ state House map.

Critics of Rudofsky’s ruling noted that it flew in the face of decades of judicial practice – including in multiple Supreme Court cases – where courts considered and decided Section 2 cases brought by private parties. They point to a 1996 Supreme Court case where five justices sanctioned the practice. They also stress that, since it was passed in 1965, the Voting Rights Act has been reauthorized and amended numerous times, and never once has Congress weighed in to say that courts were getting it wrong by hearing Section 2 lawsuits brought by private individuals and organizations.

However, those in favor of reading the VRA more narrowly have seized on a concurrence by Justice Neil Gorsuch in a 2021 VRA case that called it an “open question” whether the provision has a private cause of action. Only Justice Clarence Thomas signed on to Gorsuch’s concurrence, but it provided Rudofsky with a jumping off point to conclude the answer was no.

The office of Arkansas Attorney General Leslie Rutledge, who is defending Rudofsky’s ruling, did not respond to CNN’s request for comment. Her briefs argue that Congress intended only for attorney general to bring Section 2 lawsuits and there is a lack of textual support in the Voting Rights Act for a private cause of action for the provision.

“Despite what the practice has been, when you look at the text of the statute there is a real question as to whether there is a private right of action,” Jason Torchinsky – a GOP election law attorney who represented Arkansas Sen. Tom Cotton in a friend-of-the-court brief arguing against a private cause of action – told CNN.

At Wednesday’s 8th Circuit hearing, Circuit Judge Lavenski Smith – a George W. Bush appointee who is the chief judge of the appellate court – showed the most skepticism of Arkansas’ arguments against a private cause of action, though Stras also pushed back on some of the more sweeping claims made by Arkansas Solicitor General Nicholas Bronni.

Those against a private cause of action argue the current interpretation of the law has spawned an ever-increasing amount of private VRA litigation that is overburdening election administrators and injecting chaos into their planning.

“Courts have essentially assumed that there is this private right of action,” Honest Election Project executive director Jason Snead told CNN.

“But it’s never actually been determined that there is, and in the absence of the expressed decision by Congress to create a private right of action and put it in the text of the law, courts are not empowered to create one,” said Snead, whose group favors stricter voting laws and filed a friend of the court brief supporting Arkansas.

Without a private cause of action, enforcement of the Voting Rights Act would shrink drastically. Over the last four decades, private litigation has consistently made up the bulk of the successful Section 2 lawsuits, according to briefs filed in the case, and the number of Section 2 cases brought by the DOJ has trended downward, with the Trump administration bringing just one new lawsuit under the provision.

Even as the judiciary – and particularly the US Supreme Court – was yanked further to the right under Trump’s makeover of the federal bench, many legal experts are viewing Arkansas’ arguments as a longshot. That the argument is being put forward is nonetheless a sign of how far conservative opponents of the VRA are willing to push the envelope in this legal environment, according to Rick Hasen, an election law professor at UCLA School of Law.

“In any fair reading of the Voting Rights Act, this argument is an easy loser, but we’ll see,” Hasen told CNN. “I don’t count anything out these days.”

This story has been updated with additional details.

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January 12, 2023
Biden struggles to confirm judges in the South and thwart Trump’s impact | CNN Politics

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President Joe Biden and Senate Democrats have moved quickly to appoint scores of judges during the past two years, outpacing former President Donald Trump, but they have stalled in the South.

The dearth of nominees offered in southern states, notably where both US senators are Republican, threatens to undercut Biden’s large-scale effort to counteract Trump’s effect on the federal judiciary, particularly to bolster civil rights and ensure voter protections.

The Biden team’s well-documented diversification of the courts – nominees have been overwhelmingly women and people of color, such as Supreme Court Justice Ketanji Brown Jackson, and offered professional diversity, including public defenders and civil rights lawyers – has withered when it comes to district courts in Alabama, Florida, Louisiana and Texas, where more than a dozen such court vacancies exist.

“That is where the entrenchment of hyper-conservatism is real and difficult to uproot,” said Janai Nelson, president and director-counsel of the NAACP Legal Defense Fund.

The pattern of vacancies, particularly in the South, is not lost on the Biden selection team, led by political veterans with deep experience in judicial selection and confirmation. (Biden, himself, as a senator from Delaware, once led the Senate Judiciary Committee.)

“All of these seats are deeply important to us. We care about all of these vacancies,” Paige Herwig, senior counsel to the President, told CNN. “It’s not a secret that a large number of vacancies are in states with two Republican senators. But we are always here in good faith. We are here to work with home state senators.”

Many states beyond the South with two GOP senators, such as Idaho, Oklahoma and Utah, lack nominees for court vacancies, but the South is disproportionately affected because of its sheer population and number of open seats. The South also endures as a battleground for intense litigation over civil rights and liberties.

Federal judges are appointed for life and can become a president’s most enduring legacy. Judges’ effect on American life is clear, from the top at the Supreme Court, down to district court judges who decide which litigants even get to trial.

District courts are “the gateway to access to justice,” Nelson said.

District court judges have also shown their muscle in recent years by blocking executive branch policy with nationwide injunctions. Biden’s early initiatives, notably over immigration and student-debt relief, were first thwarted in lower courts by Republican-appointed judges.

During Biden’s first two years, the White House and Senate Democrats plainly prioritized judicial vacancies in blue states, where they could make swift and immediate progress.

Overall, Biden won confirmations for 97 appointments to the US district courts, appellate bench and Supreme Court over the past two years.

For the comparable two-year period, Trump, who set out to transform the federal courts the help of White House counsel Don McGahn and Senate Republican Leader Mitch McConnell, had named 85 judges. They scouted out likeminded conservative ideologues and then accelerated appointments in the following years by openly encouraging judges to retire to generate more vacancies.

U.S. Supreme Court says Trump-era border policy to remain in effect while legal challenges play out

10:08

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CNN

Like other progressive leaders, Nelson praises the Biden focus on a more diverse bench. Yet she said the White House could step up the pace of nominations and the Senate can move faster on the nominees it has received.

“Nancy Abudu is an excellent example of someone whose nomination has been stalled,” Nelson said. Abudu, a litigation director at the Southern Poverty Law Center, would, if confirmed, be the first Black woman on the US appeals court for the 11th Circuit, covering Alabama, Georgia and Florida. She was designated for an open Georgia seat and endorsed by the state’s two senators, both of whom are Democrats.

The Senate Judiciary Committee, which had been evenly split between Democrats and Republicans last year, deadlocked in May on Abudu’s nomination, and she had been awaiting a procedural vote by the full Senate that then would have allowed an up-or-down vote on confirmation. Biden has renominated her for the new Congress.

The question now is whether the White House will be able to ramp up negotiations with red-state senators and whether the Senate Judiciary Committee, led by Illinois Sen. Dick Durbin, will ease the practice of requiring district court nominees to have the backing of home-state senators.

By the terms of the Constitution, a president seeks the “advice and consent” of the Senate judicial appointments. Senators traditionally have influenced the selection of nominations to district and appellate courts in their home states, even to the point of blocking a disfavored candidate. In recent years, however, presidents have been able to wield more latitude for appeals court nominations.

The Judiciary Committee, however, will not hold a hearing on a district court nomination unless both home-state senators have signed off, in what’s referred to as the “blue slip” process. These blue slips of paper, as they are relayed to the committee, are intended to signify that a home-state senator has been consulted in the president’s choice. For Biden’s judicial selections, that process poses significant roadblocks.

Herwig, overseeing the judicial selection machinery, stresses that Biden is trying to generate consensus and says appointments for a Louisiana-based seat on the US Court of Appeals for the 5th Circuit (Judge Dana Douglas) and Indiana-based seat on the 7th Circuit (Judge Doris Pryor), which arose from some dealings with GOP senators, “demonstrate that there are possibilities to work together.” The Senate confirmed Douglas and Pryor, both former US magistrate judges, in December.

A second seat on the powerful 5th Circuit appellate court, covering Texas, Louisiana and Mississippi, is open with no nominee. Judge Gregg Costa, based in Texas, had announced about a year ago that he would be resigning in August 2022.

While a good portion of the open seats can be chalked up to Democratic and Republican differences, another notable appellate vacancy – for a Maryland seat on the US Court of Appeals for the 4th Circuit – rests in Democratic hands.

Judge Diana Gribbon Motz, an appointee of former President Bill Clinton, announced her retirement more than a year ago, and made it effective in September 2022. But Biden and Sen. Ben Cardin, Maryland’s senior senator, have been at odds over a successor, and the White House apparently does not want to more forward without Cardin’s backing. Herwig would not comment on that vacancy, and a Cardin spokeswoman said the senator was awaiting word from the White House on his suggested nominees.

In the meantime, the 4th Circuit, resolving appeals from Maryland, North Carolina, South Carolina, Virginia and West Virginia district courts, remains closely divided with seven Democratic and six Republican appointees.

Biden’s team signaled from the start its priority for the judiciary, and White House chief of staff Ron Klain, a former Supreme Court law clerk, has been fixated on filling the bench. Klain worked with then-Sen. Biden on the Judiciary Committee and separately helped evaluate judicial candidates in the Clinton and Obama administrations.

Herwig is a product of the Senate, too, previously serving two Democratic senators who sit on the Judiciary Committee, Dianne Feinstein and Amy Klobuchar.

In the South, however, where voting rights and immigration disputes rage, change has been slow. Going forward, as Democrats gained one more seat in the November midterm elections toward their Senate majority, southern states are likely to become a critical arena for an administration determined to reshape the bench.

The Administrative Office of the US Courts reports that as of January 6, there were 82 vacancies on federal district and appellate courts. Biden has designated nominees for only about half of those vacancies. (There are a total 677 authorized judgeships at the trial-level US district courts, 179 on the US courts of appeals and nine on the Supreme Court.)

The South has a disproportionate share of those vacancies without nominations.

Of all 50 states, Florida and Louisiana have the most openings with no nominees pending, 4 apiece. Texas has three vacancies with no nominees pending, and Alabama two (one dating to mid-2020) with no nominees offered.

It is plain, given the number of vacancies and how long some have existed, that it will not be easy to fill them. And it is unclear whether the Democratic White House and Republican senators are truly talking to each other, or actually talking past each other.

Press secretaries for Texas Sens. John Cornyn and Ted Cruz, both members of the Senate Judiciary Committee, deeply invested in the ideology of the bench, and regularly opposing Biden appointees, said the senators were working with the administration on judges.

In Louisiana, the communications director to Sen. John Kennedy, another member of the Judiciary Committee, said Kennedy’s office had no information to provide on possible appointments in Louisiana.

Ryann DuRant, press secretary to Alabama Republican Sen. Tommy Tuberville, said the White House reached out to Tuberville soon after he became a senator in 2021 to address the courts, but that since then, “there has been radio silence from the White House.”

“When the White House is ready to move forward on Alabama judicial nominees,” DuRant added in a statement, “Senator Tuberville welcomes the opportunity to discuss as a part of his role to provide advice and consent.”

McKinley Lewis, communications director for Florida Sen. Rick Scott, said the senator welcomed “an open, good faith dialogue with the White House to ensure any nominees to serve on Florida’s federal courts will respect the limited role of the judiciary and will not legislate from the bench.”

Herwig declined to detail any conservations yet stressed that there was no senator with whom her team would not work.

It’s unclear whether the Senate Judiciary Committee will feel increased pressure, from its Democratic ranks or from outside liberal interests, to amend the “blue slip” process.

Trump’s total appointments in four years reached 231, a figure that might be hard for Biden to match, if stalemates continue in Republican-dominated locales.

There are at least another 20 vacancies expected in 2023, based on information gathered by the Administrative Office of the US Courts. About a third of those are in southern locales.

At some point, judges weighing retirement, and equally concerned about whether Biden could successfully tap a replacement, may simply opt against stepping down during his remaining presidency.

In the Trump years, his GOP allies openly encouraged judges thinking about retirement to just do it. It was a sign of how vigorously Republican leaders wanted to shape the courts.

Speaking specifically of Supreme Court justices, former Senate Judiciary Committee Chairman Chuck Grassley said in a 2018 radio interview, “If you’re thinking about quitting this year, do it yesterday.”

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January 9, 2023
Supreme Court asked to step in on New York concealed carry firearm law | CNN Politics

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New York Attorney General Letitia James asked the Supreme Court on Tuesday to allow a new state law that places restrictions on carrying a concealed firearm to stay in effect while legal challenges play out.

The dispute is the first time the court has been asked on an emergency basis to consider a significant Second Amendment case since last summer’s ruling that expanded gun rights nationwide.

In that case, New York State Rifle v. Bruen, the court struck down New York’s prior concealed carry gun law. A 6-3 majority said the law prevented law-abiding citizens with “ordinary self-defense needs” from exercising their Second Amendment right to keep and bear arms for self-defense.

Just days after the opinion, New York Gov. Kathy Hochul, a Democrat, convened a special legislative session to pass a new law called the “Concealed Carry Improvement Act” on July 1. But the new law came under immediate attack as gun owners said that it was in direct “defiance” of the Supreme Court decision and continued to make it too difficult for ordinary citizens to obtain concealed carry permits.

Last fall, a district court blocked key provisions of the new law, related to requirements that an applicant demonstrate “good moral character,” provide a list of all former and current social media accounts from the past three years and “sensitive place” restrictions that include health care settings, churches and parks.

In December, however, a federal appeals court put that decision on hold and ordered expedited consideration of the matter with opening briefs due on January 9. Now, gun owners want the Supreme Court to step in.

In an emergency application filed on December 21, a lawyer for the gun owners asked the justices to step in and he defended the district court opinion. He said it was “carefully designed to limit New York’s enforcement of a sweeping gun control statute, enacted in retaliation against New York gun owners” for having prevailed in the Bruen case.

The lawyer, Stephen D. Stamboulieh, said that the 184 page opinion was “meticulously tailored” to “uphold the right of New Yorkers to keep and bear arms.”

The justices are not considering the merits of the case, only whether to lift the appeal court order pending appeal.

“Although it comes in an emergency -application posture, the request represents the first chance for the justices to weigh in on how lower courts are applying the Bruen decision and its new doctrinal framework for Second Amendment cases,” said Andrew Willinger of the Duke University School of Law.

In Tuesday’s filing, James said the district court’s opinion was “riddled with errors” and urged the justices to stay out of the dispute and let the appeals court ruling stand. She stressed that the appeals court had expedited consideration of the new law and that “further percolation of the relevant issues in the lower court is needed to inform” the Supreme Court’s review.

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January 3, 2023
Big questions on student loan forgiveness loom in 2023 | CNN Politics

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Student loan borrowers are starting 2023 with a lot of uncertainty.

The fate of President Joe Biden’s major student loan forgiveness program lies with the US Supreme Court, and it could be as late as summer before the justices rule on whether the policy can take effect.

The pandemic-related pause on student loan payments remains in place. But a restart date is up in the air, dependent on when the Supreme Court rules on the forgiveness program.

Meanwhile, significant changes are coming in July to the existing Public Service Loan Forgiveness program that aids government and nonprofit workers. And a new income-driven repayment plan that could lower payments for some federal student loan borrowers is in the works.

The mired rollout of Biden’s forgiveness program has created confusion for borrowers. Here are some of the big questions surrounding student loans this year:

In late February, the Supreme Court will hear arguments in two cases concerning Biden’s student loan forgiveness program, which could deliver up to $20,000 of debt relief for millions of low- and middle-income borrowers.

A decision on whether the program is legal and can move forward is expected by June. Until then, it is on hold and no debt will be discharged under the program.

Biden’s student loan forgiveness program has faced several legal challenges since the president announced the program in August. The Department of Education received about 26 million applications for debt relief by the time a federal district court judge struck down the program on November 10.

Lawyers for the Biden administration say that Congress gave the secretary of education “expansive authority to alleviate the hardship that federal student loan recipients may suffer as a result of national emergencies,” like the Covid-19 pandemic, according to a memo from the Department of Justice.

But litigants argue the Biden administration has overstepped its authority, and other recent Supreme Court decisions have ruled against aggressive executive agency actions. The justices curbed the Environmental Protection Agency’s authority to set certain climate change regulations last year, for example, as well as limited the federal government’s power to implement a pandemic-related eviction moratorium in 2021 and mandate Covid-19 vaccinations in 2022.

For the third consecutive time, federal student loan borrowers begin a new year without having to make payments on their loans thanks to a pandemic-related pause.

Payments were set to resume in January, but the Biden administration extended the pause after its student loan forgiveness program was halted by federal courts. Officials had told borrowers debt relief would be granted before payments restarted.

The payment pause will now last until 60 days after litigation over Biden’s student loan forgiveness program is resolved. If the program has not been implemented and the litigation has not been resolved by June 30, payments will resume 60 days after that.

Borrower balances have effectively been frozen since March 2020, with no payments required on most federal student loans. During this time, interest has stopped adding up and collections on defaulted debt have also been on hold.

For some borrowers, the pause on payments delivers an even bigger benefit than Biden’s forgiveness program ever could.

The yearslong pause cost the government $155 billion through the end of 2022, according to an estimate from the Committee for a Responsible Federal Budget.

The Public Service Loan Forgiveness program allows certain government and nonprofit employees to seek federal student loan forgiveness after making 10 years of qualifying payments – but it has been plagued with implementation problems for years.

A yearlong waiver that expanded eligibility for the PSLF program expired on October 31, but some of those temporary changes will be made permanent starting in July.

Under the new rules, borrowers will be able to receive credit toward PSLF on payments that are made late, in installments or in a lump sum. Prior rules only counted a payment as eligible if it was made in full within 15 days of its due date.

Also, time spent in certain periods of deferment or forbearance will count toward PSLF. These periods include deferments for cancer treatment, military service, economic hardship and time served in AmeriCorps and the National Guard.

Starting in July, borrowers will receive some credit for past payments when they consolidate older loans into federal Direct Loans in order to qualify for the program. Borrowers previously lost all progress toward forgiveness when they consolidated. After July, they will receive a weighted average of existing qualifying payments toward PSLF.

The new rules will also simplify the criteria to meet the requirement that a borrower be a full-time employee in a public sector job. The new standard will consider full-time employment at 30 hours a week. In particular, the change will help adjunct faculty at public colleges qualify for the program.

The Biden administration has proposed a new income-driven repayment plan that is intended to make payments more manageable for borrowers, though it’s unclear when it could take effect.

Several income-driven repayment plans already exist for federal student loan borrowers, but the new proposal could offer more favorable terms.

The new rule is expected to cap payments at 5% of a borrower’s discretionary income, down from 10% that is offered in most current income-driven plans, as well as reduce the amount of income that is considered discretionary. It would also forgive remaining balances after 10 years of repayment, instead of 20 or 25 years, as well as cover the borrower’s unpaid monthly interest.

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January 3, 2023
Roberts calls for judicial security in year-end report while avoiding mention of ethics reform or abortion draft leak | CNN Politics

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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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December 31, 2022
Biden administration urges Supreme Court to narrow Big Tech’s liability shield in pivotal Google case | CNN Business

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CNN Business
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The Biden administration has told the US Supreme Court that social media platforms ought to be potentially liable for recommendations made by their AI-driven content algorithms, weighing in against Google in a pivotal case on digital speech and content moderation.

In a filing to the Court Wednesday evening, the administration argued federal law does not immunize tech platforms from lawsuits that zero in on recommendation algorithms, even when the same law shields the companies from suits about decisions to host or remove actual user content.

The legal brief could prove instrumental in a closely watched case about the regulation of digital platforms, and reflects longstanding calls by President Joe Biden to roll back liability protections for companies such as Facebook and Google.

The case in question, Gonzalez v. Google, offers the Supreme Court its first opportunity to rule on Section 230 of the Communications Decency Act, the liability shield many websites have used to nip content moderation lawsuits in the bud. Several Supreme Court justices, including most vocally the conservative Clarence Thomas, have expressed interest in hearing a case that may allow the Court to narrow Section 230’s broad protections.

Section 230 has been called “the 26 words that created the internet,” and was passed by Congress in 1996 as a way to shield all websites, not just social media platforms, from lawsuits over third-party content. But in recent years it has come under fire from members of both parties, with Democrats arguing it has enabled platforms to escape accountability for facilitating hate speech and misinformation, and Republicans arguing it shields platforms from claims of political discrimination.

Google didn’t immediately respond to a request for comment.

The US government’s brief addresses Google-owned YouTube’s recommendation of videos produced by the terrorist group ISIS. The plaintiffs in the case — the family of Nohemi Gonzalez, who was killed in a 2015 ISIS attack in Paris — have alleged, among other things, that Google violated a US antiterrorism law with its content algorithms by recommending pro-ISIS videos to users.

Google has argued Section 230 protects the company’s ability to organize and curate content, and that a ruling against it could hurt efforts to remove terrorist content. An earlier appellate court ruling had sided with Google.

“Undercutting Section 230 would make it harder, not easier, to combat harmful content,” José Castañeda, a Google spokesperson, has previously said, “making the internet less safe and less helpful for all of us.”

According to the Biden administration, Section 230 does protect Google and YouTube from lawsuits “for failing to remove third-party content, including the content it has recommended.”

But, the government’s brief argued, those protections do not extend to Google’s algorithms because they represent the company’s own speech, not that of others.

“The effect of YouTube’s algorithms is still to communicate a message from YouTube that is distinct from the messages conveyed by the videos themselves,” the filing said. It added: “Even if YouTube plays no role in the videos’ creation or development, it remains potentially liable for its own conduct and its own communications.”

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December 11, 2022
Alito’s mentions of Ashley Madison and children wearing KKK costumes cap an awkward Supreme Court day | CNN Politics

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As the Supreme Court gathered for more than two hours on Monday to discuss whether a graphic designer can refuse to do business with same-sex couples, the justices somehow strayed into dueling hypotheticals concerning Black and White Santas and dating websites.

Hypotheticals are nothing new at the high court as the justices probe how cases before the court could impact different challenges down the road. But Monday’s hypothetical was unusually awkward, with a reference to children wearing a Ku Klux Klan outfit to visit Santa Claus.

It all began when Justice Ketanji Jackson expressed some alarm about the extent of arguments put forward by the graphic designer, Lorie Smith, who wants to expand her business to celebrate marriages, but does not want to work with same-sex couples out of religious objections to same-sex marriage.

“Can I ask you a hypothetical that just sort of helps me flesh” this out, Jackson asked a lawyer for the designer.

Jackson wanted to know about a photography business in a hypothetical shopping mall during the holiday season that offers a product called “Scenes with Santa.” She said the photographer wants to express his own view of nostalgia about Christmases past by reproducing 1940s and 1950s Santa scenes in sepia tone.

“Their policy is that only White children can be photographed with Santa,” Jackson said and noted that according to her hypothetical, the photographer is willing to refer families of color to the Santa at “the other end of the mall” who will take anybody, and they will photograph families of color.

Jackson asked Kristen Waggoner, Smith’s lawyer, “why isn’t your argument that they should be able to do that?”

Waggoner finally said that there are “difficult lines to draw” and said that the Santa hypothetical might be an “edge case.”

That drew incredulity on the part of liberal Justice Elena Kagan.

“It may be an ‘edge case’ meaning it could fall on either side, you’re not sure?” she asked.

Jackson returned to her query later and expanded it. She said her hypothetical photographer is doing something akin to the movie “It’s a Wonderful Life” and wants it to be “authentic” so that only White children could be customers.

Waggoner suggested that in the case at hand the “message wins,” but never really explained what she meant.

Artist explains why she thinks she shouldn’t have to work with same-sex couples

When a lawyer for Colorado stood up to defend the state’s anti-discrimination law, Justice Samuel Alito chimed in.

He wanted to know if a Black Santa at the other end of the mall doesn’t want to have his picture taken with a child who’s dressed up in a Ku Klux Klan outfit whether the Black Santa has to do it?

Colorado Solicitor General Eric Olson replied that there is no law that protects a right to wear a KKK outfit.

That spurred Kagan to jump in, noting that objection would be based on the outfit, not whether it was worn by a Black or a White child.

Alito then uttered an extremely awkward aside that could have been an attempted joke gone astray. “You do see a lot of Black children in Ku Klux Klan outfits, right? All the time.”

At another point in arguments Alito was posing a set of hypotheticals and again engaged Kagan – his seat mate – as he searched for how the case at hand could impact other cases.

He was referring to a “friend-of-the-court” brief filed by lawyer Josh Blackman on behalf of the Jewish Coalition for Religious Liberty in support of Smith. The aim of the brief is to discuss problematic situations for Jewish artisans who object to speaking out about certain topics. A series of hypotheticals was included to show instances in which a Jewish artist would be compelled to betray his conscience.

“An unmarried Jewish person asks a Jewish photographer to take a photograph for his JDate dating profile,” Alito began, referring to a hypothetical in the brief.

He paused. “It’s a dating service, I gather, for Jewish people,” Alito said.

Kagan, who is Jewish, chimed in to laughter, “It is.”

Alito decided to plow awkwardly forward with another hypothetical from Blackman’s brief .

“All right. Maybe Justice Kagan will also be familiar with the next website I’m going to mention,” he said. “A Jewish person asks a Jewish photographer to take a photograph for his Ashleymadison.com dating profile.”

The audience laughed as Ashleymadison.com appears to refer to an online dating service and social networking services marketed to people who are married or already in relationships.

It was another awkward moment with Alito adding: “I’m not suggesting that – she knows a lot of things. I’m not suggesting – okay … Does he have to do it?”

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December 5, 2022