Tag: us supreme court

Supreme Court declines to revisit landmark libel ruling, though Clarence Thomas wants to reconsider the decision | CNN Politics

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The Supreme Court declined on Tuesday to revisit the landmark First Amendment decision in New York Times v. Sullivan, rebuffing a request to take another look at decades-old precedent that created a higher bar for public figures to claim libel in civil suits.

The media world has for years relied on the unanimous decision in the 1964 case to fend off costly defamation lawsuits brought by public figures. The ruling established the requirement that public figures show “actual malice” before they can succeed in a libel dispute.

Despite being a mainstay in US media law, the Sullivan decision has increasingly come under fire by conservatives both inside and outside the court, including Justice Clarence Thomas, who said on Tuesday that he still wanted to revisit Sullivan at some point.

“In an appropriate case, however, we should reconsider New York Times and our other decisions displacing state defamation law,” Thomas wrote in a brief concurrence to the court’s decision not to take up the case. He said that the case, Don Blankenship v. NBC Universal, LLC, was a poor vehicle to reconsider Sullivan.

Just a few months ago, the conservative justice attacked the ruling in Sullivan in a fiery dissent in which he called it “flawed.” Thomas issued other public critiques of Sullivan in recent years, including in 2019, when he wrote that the ruling and “the Court’s decisions extending it were policy-driven decisions masquerading as constitutional law.”

The case at hand concerns Don Blankenship, a former coal baron who was convicted of a federal conspiracy offense related to a deadly 2010 explosion at a mine he ran, in what was one of the worst US mine disasters in decades. His sentence of a year in prison was one day less than a felony sentence.

“Blankenship himself admits this was a highly unusual sentence for a misdemeanor offense; he notes that he was the only inmate at his prison who was not serving a sentence for a felony conviction,” according to a lower-court opinion in the case.

During his unsuccessful 2018 US Senate campaign in West Virginia, a number of media organizations erroneously reported that he was a convicted felon, even though his conspiracy offense was classified as a misdemeanor.

Blankenship sued a slew of news outlets for the error, alleging defamation and false light invasion of privacy. Lower courts ruled against him, finding that the outlets did not make the statements with actual malice, the standard required by Sullivan.

Attorneys for Blankenship told the justices in court papers that the “damage was irreparable” since no felon has ever been elected to the Senate, and urged them to overturn the Sullivan decision.

“The actual malice standard poses a clear and present danger to our democracy,” they wrote. “New York Times Co. v. Sullivan and its progeny grant the press a license to publish defamatory falsehoods that misinform voters, manipulate elections, intensify polarization, and incite unrest.”

Attorneys for the media outlets urged the justices not to take up the case, arguing that it’s “as poor a vehicle as one could imagine to consider” questions related to Sullivan’s holding because, they said, the reporting mistakes were honest ones.

“There is good reason why the actual malice standard of New York Times has been embraced for so long and so often,” the media organizations told the justices. “At its essence, the standard protects ‘erroneous statements honestly made.’ While it permits recovery for falsehoods uttered with knowledge of falsity or with reckless disregard for the truth, it provides the ‘breathing space’ required for ‘free debate.’ A free people engaged in self-government deserves no less.”

Just last year the court declined to revisit Sullivan in a case brought by a not-for-profit Christian ministry against the Southern Poverty Law Center.

At the time, Thomas dissented from the court’s refusal to take up the case.

“I would grant certiorari in this case to revisit the ‘actual malice’ standard,” he wrote. “This case is one of many showing how New York Times and its progeny have allowed media organizations and interest groups ‘to cast false aspersions on public figures with near impunity.’”

In 2021, conservative Justice Neil Gorsuch also questioned the decision in Sullivan, writing in a dissent when the court decided not to take up a defamation case that the 1964 ruling should be revisited in part because it “has come to leave far more people without redress than anyone could have predicted.”

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October 10, 2023
The fate of this consumer watchdog is in the hands of the Supreme Court | CNN Business

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On Tuesday, the Supreme Court began hearing oral arguments in a case that will determine the fate of the Consumer Financial Protection Bureau.

The case was brought on by the Community Financial Services Association of America, a trade group representing payday lenders.

The group scored a victory last year in a case it brought before the US Court of Appeals for the Fifth Circuit, in New Orleans. The three-judge panel ruled the CFPB’s funding violates the Constitution’s Appropriations Clause and separation of powers. The Supreme Court will have the final say on that, however.

The consumer watchdog agency was created after the 2008 financial crisis by way of the Dodd-Frank Wall Street Reform and Consumer Protection Act. The agency was the brainchild of Democratic Sen. Elizabeth Warren. She began advocating for it in 2007 when she was a Harvard Law School professor.

The broad purpose of the CFPB is to protect consumers from financial abuses and to serve as the central agency for consumer financial protection authorities.

Prior to the CFPB’s formation, “[c]onsumer financial protection had not been the primary focus of any federal agency, and no agency had effective tools to set the rules for and oversee the whole market,” the agency said on its site.

The CFPB is funded by the Federal Reserve in an effort to keep the agency independent from political pressure. It also means that the agency doesn’t depend on Congressional appropriations funds.

While there are critics of the agency’s current structure and funding, it has saved consumers money, made it easier for them to seek redress and to get better clarity and more tailored responses from companies when they have a problem with their accounts, loans or credit reports.

“Today virtually all financial transactions for residential real estate in the United States depend upon compliance with the CFPB’s rules, and consumers rely on the rights and protections provided by those rules,” the Mortgage Bankers Association, the National Association of Homebuilders and the National Association of Realtors said in an amicus brief to the Supreme Court.

For instance, the CFPB recently ordered Bank of America to pay $100 million to customers and $90 million in penalties saying that the nation’s second-largest bank harmed consumers by double-dipping on fees, withholding credit card rewards and opening fake accounts.

The CFPB also took action against Wells Fargo after the agency found the bank had been engaging in multiple abusive and unlawful consumer practices across several financial products between 2011 and 2022 — from auto loans to mortgage loans to bank accounts.

The agency ordered the bank to pay a $1.7 billion civil penalty in addition to more than $2 billion to compensate consumers.

The Supreme Court’s decision, which likely won’t be announced until the spring of 2024, has far-reaching implications.

If the Supreme Court finds the CFPB’s funding structure unconstitutional, it could shutter the agency and invalidate all of its prior rulings.

“Without those rules substantial uncertainty would arise as to how to undertake mortgage transactions in accordance with federal law,” the associations said in their joint brief. “The housing market could descend into chaos, to the detriment of all mortgage borrowers,” they added.

It could also call into question the constitutionality of other government agencies like the Federal Reserve and the Federal Deposit Insurance Corporation that also aren’t funded by Congressional appropriations.

“We are confident in the constitutionality of the statute that created the CFPB within the Federal Reserve System and provides its funding,” Sam Gilford, a spokesperson for the CFPB, told CNN in a statement. “We will continue to carry out the vital work Congress has charged us to perform.”

There’s also a way for the Supreme Court to change the CFPB’s funding structure in a way that wouldn’t invalidate prior rulings, said Joseph Lynyak III, a partner at the law firm of Dorsey & Whitney and a regulatory reform expert.

“This result would be far more probable rather than voiding the last decade of the CFPB’s activity,” he added.

From listening to the case on Tuesday, though, Lynyak believes the Supreme Court will rule that the CFPB’s funding structure is constitutional.

“As we have argued from the outset, the CFPB’s unique funding mechanism lacks any contemporary or historical precedent,” said Noel Francisco, a lawyer arguing on behalf of those challenging the constitutionality of the CFPB’s funding structure.

He added that it “improperly shields the agency from congressional oversight and accountability, and unconstitutionally strips Congress of its power of the purse under the Appropriations Clause of the Constitution.

But both Republican and Democratic-appointed justices told Francisco on Tuesday they could not understand the crux of his argument.

“I’m at a total loss,” said Justice Sonia Sotomayor. Echoing her remarks, Justice Amy Coney Barrett said, “we’re all struggling to figure out what’s the standard that you would use.”

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October 3, 2023
Supreme Court returns for first private meeting of the term amid even more controversy | CNN Politics

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

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

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

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

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

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

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

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

It was one line in one speech.

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

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

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

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

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

The way forward for Roberts is not obvious.

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

Some believe Roberts ultimately will steer clear of the controversy.

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

But if the court does nothing, pressure will continue.

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

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

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

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

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

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

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

Response from the bench

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

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

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

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

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

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

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

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

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

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

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

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

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

But his sentiment may have been aspirational.

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

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

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

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September 26, 2023
NYT: Architect of Trump fake electors plot thought SCOTUS would ‘likely’ reject plan, but pushed ahead anyway | CNN Politics

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An internal Trump campaign memo from December 2020, made public Tuesday by The New York Times, reveals new details about how the campaign initiated its plan to subvert the Electoral College process and install fake GOP electors in multiple states after losing the 2020 presidential election.

In the December 6, 2020, memo, pro-Trump lawyer Kenneth Chesebro laid out the plan to put forth slates of Republican electors in seven key swing states that then-President Donald Trump lost. The memo then outlines how then-Vice President Mike Pence, while presiding over the Electoral College certification on January 6, 2021, should declare “that it is his constitutional power and duty, alone, as President of the Senate, to both open and count the votes” from the GOP electors.

Chesebro conceded in the memo that this idea was a “controversial” long shot that would “likely” be rejected by the Supreme Court – but nonetheless promoted the strategy. He wrote that despite the legal dubiousness, “letting matters play out this way would guarantee that public attention would be riveted on the evidence of electoral abuses by the Democrats and would also buy the Trump campaign more time to win litigation that would deprive Biden of electoral votes and/or add to Trump’s column.”

The fake electors scheme has become an integral part of the recent federal indictment against Trump, which alleges the plot took shape after it became clear that efforts to convince state officials to not certify Joe Biden’s victories would be unsuccessful.

CNN previously reported that the scheme was overseen by Trump campaign officials and led by Rudy Giuliani. Chesebro, who authored the newly released memo, is an unindicted co-conspirator in the Trump indictment and was described by prosecutors as “an attorney who assisted in devising and attempting to implement a plan to submit fraudulent slates of presidential electors to obstruct the certification proceeding.” He has not been charged with any crimes.

According to Trump’s January 6-related indictment and previous CNN reporting, there were multiple planning calls between Trump campaign officials and GOP state operatives, and Giuliani participated in at least one call. The Trump campaign lined up supporters to fill elector slots, secured meeting rooms for the fake electors to meet on December 14, 2020, and circulated drafts of fake certificates that they later signed.

At the time, their actions were largely dismissed as an elaborate political cosplay. But it eventually became clear that this was part of an orchestrated plan.

“Under the plan, the submission of these fraudulent slates would create a fake controversy at the certification proceeding and position the Vice President-presiding on January 6 as President of the Senate to supplant legitimate electors with the Defendant’s fake electors and certify the Defendant as president,” the indictment states.

Prosecutors say Chesebro told Guiliani – both identified in the indictment only as co-conspirator 5 and co-conspirator 1, respectively – that he had been told by state-level operatives that “it could appear treasonous for the AZ electors to vote on Monday if there is no pending court proceeding.”

“I recognize that what I suggest is a bold, controversial strategy, and that there are many reasons why it might not end up being executed on Jan. 6,” Chesebro wrote in the December 6 memo, despite pushing the idea and outlining a plan in the days to come. “But as long as it is one possible option, to preserve it as a possibility it is important that the Trump-Pence electors cast their electoral votes on Dec. 14.”

That is ultimately what ended up happening on December 14, 2020.

Many of the fake GOP electors who signed the phony certificates that day have since come under legal scrutiny: The fake electors from Michigan are facing state-level felony charges for forgery and publishing a counterfeit record, and many of the fake electors from Georgia are targets of the 2020-related criminal probe in Fulton County.

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August 9, 2023
Supreme Court allows Biden administration to continue fully enforcing ghost gun regulations | CNN Politics

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The Supreme Court on Monday allowed the Biden administration to continue regulating so-called ghost guns – untraceable homemade weapons – as firearms under federal law.

The court’s brief order grants the Justice Department’s request to wipe away a lower court order and allow the regulations to remain in effect while a legal challenge brought by firearm manufacturers continues to play out in the lower courts.

There were no noted dissents to the order.

Ghost guns are kits that a user can buy online to assemble a fully functional firearm. They have no serial numbers, do not require background checks and provide no transfer records for easy traceability. Critics say they are attractive to people who are legally prohibited from buying firearms.

In the Justice Department’s emergency application to the justices, Solicitor General Elizabeth Prelogar pointed out that a district court judge had essentially ignored an order the Supreme Court issued just two months ago.

Back in August, a 5-4 court sided with the Biden administration in a challenge brought by a group of manufacturers and allowed the regulations to remain in effect while legal challenges play out. At the time, Chief Justice John Roberts and Justice Amy Coney Barrett sided with the liberal justices in the government’s favor.

After the order was issued, however, a district court judge based in Texas stepped in to block the regulations as applied to two manufacturers. The injunction was then largely upheld by the conservative 5th US Circuit Court of Appeals.

In an unusually sharp filing, Prelogar told the justices in an emergency application that the district court and the 5th Circuit “have effectively countermanded this Court’s authoritative determination about the status quo that should prevail during appellate proceedings in this case.”

The court “should not tolerate that affront,” she wrote.

“Although there’s no explanation for today’s ruling, it’s hard to see it as anything other than a repudiation of the lower courts for not correctly reading the tea leaves of the court’s August ruling that froze a similar injunction,” said Steve Vladeck, CNN Supreme Court analyst and professor at the University of Texas School of Law. “In that sense, it’s just the latest in an increasing line of rulings by the Supreme Court pushing back against district courts in Texas and the 5th Circuit.”

Prelogar called the lower court ruling “a grave threat to public safety because the lack of background checks makes ghost guns uniquely appealing to felons, minors, and other prohibited persons – and because when ghost guns are inevitably used in crime, they are essentially impossible to trace.”

In 2022, the Bureau of Alcohol, Tobacco, Firearms and Explosives updated its regulations to define the kits as firearms under the law so that the government could more carefully track them.

The rule does not prohibit the sale or possession of any ghost gun kit, nor does it block an individual from purchasing such a kit. Instead, it requires compliance with federal laws that impose conditions on the commercial sale of firearms. Those conditions include requirements that commercial manufacturers and sellers mark products with serial numbers and keep records to allow law enforcement to trace firearms used in crimes.

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August 2, 2023
Amy Coney Barrett: Supreme Court ethics code would be a good idea | CNN Politics

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Amy Coney Barrett on Monday became the latest Supreme Court justice to address ethics concerns, saying that she thought it would be a “good idea” for the justices to adopt a formal code of conduct that would directly bind the justices.

Her comments came during an appearance that was briefly interrupted by protesters at University of Minnesota Law School in a talk moderated by Professor Robert A. Stein. “Not the Court, not the State, People must decide their fate,” chanted the protesters, who appeared to make reference to her controversial vote last year to overturn Roe v. Wade – a decision that has triggered protests nationwide.

When the talk resumed, Barrett confirmed that the justices have been discussing ethics concerns and are committed to holding themselves to the “highest standards.”

It would be a “good idea” to adopt a formal code, she said, “particularly so that we can communicate to the public exactly what it is that we are doing in a clearer way than perhaps we have been able to do so far.”

She stressed there is “unanimity among all nine justices that we should and do hold ourselves to the highest ethical standards possible.”

Although Barrett didn’t address specific concerns, news reports over the last several months have detailed alleged ethics lapses on the part of some of the justices and Democrats in Congress are pushing for legislation that would enforce a code conduct.

Other justices have confirmed in recent months that talks about ethics are ongoing, although no concrete steps have been announced. Barrett said she couldn’t speak to the timing of any announcement.

Barrett, who voted with her conservative colleagues last year to overturn the landmark Roe v. Wade decision that established a constitutional right to an abortion, was also asked about when a justice should vote to overturn precedent.

She said that there are several considerations a judge thinks about when voting to overrule precedent, including the “effects of that error” on the law today and whether the error “has distorted other areas of the law.”

“Overturning precedent is not something to be done lightly,” Barrett said.

On a different note, Barrett, who has seven children, also spoke of the perils of being a working mother – noting that she shares the same struggles as many working parents.

She recounted a morning last term where one of her children had been listening to the Baha Men’s “Who let the dogs out” just before the school bus arrived.

Hours later, Barrett confessed, she found herself walking down the austere marble hallways of the court humming the hit because she couldn’t get it out of her head.

Motherhood, Barrett said, is very “grounding” and keeps her “very much rooted in real life.”

Asked if she was enjoying herself on the high court, Barrett said the job has its “ups and downs” and that she feels a “grave responsibility” at times.

“Enjoying myself is not quite the word I would use, but it is a privilege to serve, and I have no regrets about undertaking the service, and I am fully conscious that everything I am doing is very important for the people of America and those are the people for whom I work,” she said.

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August 2, 2023
Redistricting fights in these 10 states could determine which party controls the US House | CNN Politics

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Around the country, politicians are waging high-stakes battles over new congressional lines that could influence which party controls the US House of Representatives after the 2024 election.

In North Carolina, the Republicans who control the state legislature have crafted a map that could help them flip at least three seats. Democrats, meanwhile, could pick up seats in legal skirmishes now playing out in New York, Louisiana, Georgia and other states.

In all, the fate of anywhere from 14 to 18 House seats across nearly a dozen states could turn on the results of these fights. Republicans currently hold just a five-seat edge in the US House. That razor-edge majority has been underscored in recent weeks by the GOP’s chaotic struggle to elect a new speaker.

“Given that the majority is so narrow, every outcome matters to the fight for House control in 2024,” said David Wasserman, who follows redistricting closely as senior editor and elections analyst for The Cook Political Report with Amy Walter.

And with fewer competitive districts that swing between the political parties, Wasserman added, “every line change is almost existential.”

Experts say several other factors have helped lead to the slew of consequential – and unresolved – redistricting disputes, just months before the first primaries of the 2024 cycle.

They include pandemic-related delays in completing the 2020 census – the once-a-decade population count that kicks off congressional and state legislative redistricting – as well as a 2019 Supreme Court ruling that threw decisions about partisan gerrymandering back to state courts.

In addition, some litigation had been frozen in place until the US Supreme Court’s surprise ruling in June, which found that a Republican-crafted redistricting plan in Alabama disadvantaged Black voters in the state and was in violation of the landmark 1965 Voting Rights Act.

That decision “is functionally reanimating all of these dormant cases,” said Adam Kincaid, the president and executive director of the National Republican Redistricting Trust, which supports the GOP’s redistricting efforts.

Kincaid said it’s too soon to tell whether Republicans or Democrats will emerge with the advantage by Election Day 2024. In his view, either party could gain or lose only about two seats over redistricting.

In many of the closely watched states where action is pending, just a single seat hangs in the balance, with two notable exceptions: North Carolina and New York, where multiple seats are at stake. Republicans control the map-drawing in the Tar Heel State, while the job could fall to Democrats in New York, potentially canceling out each party’s gains.

“Democrats kind of need to run the table in the rest of these states” to gain any edge, said Nick Seabrook, a political scientist at the University of North Florida and the author of the 2022 book “One Person, One Vote: A Surprising History of Gerrymandering in America.”

Here’s a state-by-state look at recent and upcoming redistricting disputes that could shape the 2024 race for control of the US House:

In one of the cycle’s highest-profile redistricting cases, a three-judge panel in Alabama approved a map that creates a second congressional district with a substantial Black population. Before the court action, Alabama – which is 27% Black – had only one Black-majority congressional district out of seven seats.

The fight over the map went all the way to the Supreme Court – which issued a surprise ruling, affirming a lower-court opinion that ordered Alabama to include a second Black-majority district or “something quite close to it.” Under the map that will be in place for the 2024 election, the state’s 2nd District now loops into Mobile to create a seat where nearly half the population is Black.

The high court’s 5-4 decision in June saw two conservatives, Chief Justice John Roberts and Justice Brett Kavanaugh, side with the three liberals to uphold the lower-court ruling. Their action kept intact a key pillar of the Voting Rights Act: that it’s illegal to draw maps that effectively keep Black voters from electing a candidate of their choice.

The ruling has reverberated around the country and could affect the outcome of similar court cases underway in Louisiana and Georgia that center on whether Republican-drawn maps improperly diluted Black political power in those states.

Given that Black voters in Alabama have traditionally backed Democrats, the party now stands a better chance of winning the newly reconfigured district and sending to of its members to Congress after next year’s elections.

The new map – approved in recent days by the lower-court judges – also could result in two Black US House members from Alabama serving together for the first time in state history.

A state judge in September struck down congressional lines for northern Florida that had been championed by Gov. Ron DeSantis, ruling that the Republican governor’s map had improperly diluted Black voting power.

This case, unlike the Alabama fight decided by the US Supreme Court, centers on provisions in the state constitution.

The judge concluded that the congressional boundaries – which essentially dismantled a seat once held by Al Lawson, a Black Democrat, that connected Black communities across a northern reach of the Florida – violated the state’s Fair Districts amendments, enacted by voters. One amendment specifically bars the state from drawing a district that diminishes the ability of racial minorities “to elect representatives of their choice.”

Arguments before an appeals court are slated for later this month, with litigants seeking a decision by late November. The case is expected to land before the all-Republican state Supreme Court, where DeSantis appointees hold most seats.

A separate federal case – which argues that the map violates the US Constitution – is pending.

But observers say the outcome of the state litigation is more likely than the federal case to determine whether Florida lawmakers must restore the North Florida district, given the state constitution’s especially strong protections for the voting rights of racial minorities and the lower burden of proof required to establish that those rights were abridged.

A redistricting case now before a federal judge could create a more competitive seat for Democrats in the Atlanta suburbs.

The plaintiffs challenging the congressional map drawn by Georgia Republicans argue that the increasingly diverse population in the Peach State should result in an additional Black-majority district, this one in the western Atlanta metro area. A trial in the case recently concluded and awaits a final ruling by US District Judge Steve Jones.

In 2022, Jones preliminarily ruled that some parts of the Republicans’ redistricting plan likely violated federal law but allowed the map to be used in that year’s midterm elections.

A separate federal case in Georgia challenges the congressional map on constitutional grounds and is slated to go to trial next month.

Currently, Republicans hold nine of the 14 seats in Georgia’s congressional delegation. Black people make up a majority, or close to it, in four districts, including three in the Atlanta area.

The Kentucky Supreme Court could soon decide whether a map drawn by the state’s Republican-controlled legislature amounts to what Democrats assert is an “extreme partisan” gerrymander in violation of the state’s constitution.

Much of the case focuses on disputes over state legislative maps, but the congressional lines also are at stake, with critics saying lawmakers moved Kentucky’s capital city – Democratic-leaning Frankfort – out of the 6th Congressional District and into an oddly shaped – and solidly Republican – 1st District to help shore up Republican odds of holding the 6th District.

The 6th District, represented by GOP Rep. Andy Barr, was one of the more competitive seats in Kentucky under its previous lines. (Democrat Amy McGrath came within 3 points of beating Barr in 2018; last year, Barr won a sixth term under the new lines by 29 points.)

A lower-court judge already has ruled that the Republican-drawn map does not violate the state’s constitution.

The Supreme Court’s decision in Alabama could pave the way for a new congressional map in Louisiana ahead of the 2024 election, but the case has quickly become mired in appeals.

Although Black people make up roughly a third of the state’s population, Louisiana has just one Black lawmaker in its six-member congressional delegation.

A federal judge threw out the state’s Republican-drawn map in 2022, saying it likely violated the Voting Rights Act. Republican officials in the state appealed to the US Supreme Court, which put the lower-court ruling on hold until it decided the Alabama case, which it did in June this year.

Once the high court weighed in on the Alabama case, the legal skirmishes again lurched to life in Louisiana.

Louisiana Republicans have filed an appeal with the 5th US Circuit Court of Appeals and successfully halted a district court hearing to discuss imposing a new, court-ordered map.

On Thursday, the US Supreme Court declined to allow the federal district judge to move forward with discussions about drawing a new map while the appeal advances through the courts.

GOP state officials say, among other things, that they are seeking time to redraw the map themselves. Critics of the state’s original map argue that Republicans are using legal maneuvers to delay a new redistricting plan, which could result in a second Democratic-leaning seat.

Legal battles that drag on risk judges invoking the so-called Purcell Principle, a doctrine that limits changing voting procedures and boundaries too close to Election Day to guard against voter confusion.

“Some of the reason it becomes too late is because, in many of these cases, the state is prolonging the litigation … and buying more time with an illegal map,” said Kareem Crayton, senior director for voting and representation at the liberal-leaning Brennan Center for Justice.

Republicans in New Mexico say the congressional lines drawn by the Democrats who control state government amount to an illegal gerrymander under the state’s constitution.

At stake: a swing district along the US border with Mexico. If Republicans prevail, the seat – now held by a Democratic Rep. Gabe Vasquez – could become more favorable to Republicans.

A state judge recently upheld the map drawn by Democrats, but the New Mexico Supreme Court is expected to review that order on appeal.

Republicans flipped four US House seats in New York in the 2022 midterm elections, victories that helped secure their party’s majority in the chamber.

Current legal fights in the Empire State over redistricting, however, could erase those gains.

A state court judge oversaw last year’s process of drawing the current map following a long legal battle and the inability of New York’s bipartisan redistricting commission to agree on new lines. But Democrats scored a court victory earlier this year when a state appellate court ruled that the redistricting commission should draw new lines.

Republicans have appealed that decision, and oral arguments are set for mid-November before New York’s Court of Appeals, the state’s highest court. The commission’s map-making also is on hold.

If Democrats prevail, it could make it easier for their party to pick up as many as six seats now held by Republicans.

North Carolina’s legislature, where Republicans hold a supermajority, has drawn new congressional lines that observers say could prove a windfall for the GOP and boost the party’s chances of retaining its House majority next year.

The state’s current House delegation is split 7-7 between Democrats and Republicans.

A map that state lawmakers recently approved puts three House Democrats in what one expert called “almost impossible to win” districts.

The affected Democrats are Reps. Jeff Jackson, who currently represents a Charlotte-area district; Wiley Nickel, who holds a Raleigh-area seat; and Kathy Manning, who represents Greensboro and other parts of north-central North Carolina.

A fourth Democrat, Rep. Don Davis, saw his district retooled to become more friendly toward Republicans while remaining competitive for both parties.

State-level gains in the 2022 midterm elections have given the GOP new sway over redistricting in this swing state. Last year, Republicans flipped North Carolina’s Supreme Court, whose members are chosen in partisan elections. The new GOP majority on the court this year tossed out a 2022 ruling by the then-Democratic leaning court against partisan gerrymandering.

A map that had been created after the Democratic-led high court’s ruling resulted in the current even split in the state’s House delegation.

Democratic Gov. Roy Cooper does not have veto power over redistricting legislation.

A redistricting case pending before the US Supreme Court centers on the future of a Charleston-area seat held by Republican Rep. Nancy Mace, who made headlines recently for joining House GOP hard-liners in voting to remove Kevin McCarthy as speaker.

Earlier this year, a three-judge panel concluded that lines for the coastal 1st Congressional District, as drawn by state GOP lawmakers, amounted to an unconstitutional racial gerrymander.

The Republican lawmakers appealed to the US Supreme Court. And, during oral arguments earlier this month, several justices in the court’s conservative majority expressed skepticism that South Carolina officials had engaged in an improper racial gerrymander and seemed inclined to reinstate the lawmakers’ map.

The state Supreme Court, in a case it heard in July, is considering whether it even has the authority to weigh in on map-drawing decisions by the GOP-controlled state legislature.

Republican state officials argue that the court’s power over redistricting decisions is limited.

Advocacy groups and a handful of voters are challenging a congressional map that further carved up Democratic-leaning Salt Lake County between four decidedly Republican districts.

Doing so, the plaintiffs argued in their lawsuit, “takes a slice of Salt Lake County and grafts it onto large swaths of the rest of Utah,” allowing Republican voters in rural areas and smaller cities far away from Salt Lake to “dictate the outcome of elections.”

Redistricting fights over congressional maps are ongoing in several other states – ranging from Texas to Tennessee – but those cases might not be resolved in time to affect next year’s elections.

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August 2, 2023
Justice Kagan order: Apple doesn’t have to change app store terms while battling Epic in court | CNN Business

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A judicial order forcing Apple to change some of its app store terms will not need to take immediate effect while litigation over the decision plays out, Supreme Court Justice Elena Kagan said on Wednesday, handing a temporary defeat to opponents of the company.

The order is a setback for “Fortnite”-maker Epic Games as Apple appeals a lower-court ruling that found the iPhone-maker had violated California competition law.

Epic Games declined to comment on Kagan’s decision, which occurred in the Supreme Court’s so-called “shadow docket” and was not referred to the full court.

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

Apple had previously been ordered not to interfere with efforts by iOS app developers to inform their users within their apps about alternatives to Apple’s in-app payment system, which allows Apple to take a commission.

In April, a federal appeals court upheld the order that, if allowed to take effect, would prevent Apple from intervening when developers include “buttons, external links or other calls to action that direct customers to purchasing mechanisms” apart from Apple’s own channels.

The appeals court temporarily paused enforcement of the injunction while Apple appeals the ruling to the Supreme Court. But last month, Epic Games filed an emergency request to the court calling for the order to be put into effect immediately, saying the public would otherwise be harmed by Apple’s practices.

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August 2, 2023
What judicial ethics rules say about Clarence Thomas’ lifestyle bankrolled by his friends | CNN Politics

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It’s undeniable that Justice Clarence Thomas’ friendships with billionaires willing to foot his bill on their vacations together have given the conservative jurist a lifestyle most Americans could only dream of.

But determining whether Thomas violated ethics rules and laws by failing to disclose that hospitality is tricky.

The law in question is the Ethics in Government Act, and how it should be applied to the extravagant travel that Thomas and other justices have been treated to has been a subject of debate.

The debate centers on what counts as “personal hospitality” – i.e., accommodations and entertainment that judges are treated to personally by their friends – which does not have to be reported on annual financial disclosures under certain contexts.

The Supreme Court’s critics note that, even if Thomas was not technically in violation of the rules, his pattern of accepting – and not reporting – lavish experiences such as skybox tickets to major sporting events and far-flung trips on mega-yachts shows that the high court cannot be trusted to police itself under the current standards. Some argue that more stringent ethical reforms – perhaps in the form of legislation – are needed.

Further complicating the picture is that the regulations laying out when personal hospitality need not be reported have recently been tightened. Thomas’ defenders have pointed to those changes, announced earlier this year, to argue that the old regime did not require the justice to report the types of hospitality now under scrutiny. Thomas himself – in a rare statement released in April, when ProPublica published its first investigation into the extravagant travel perks he has received – noted that reworked ethical guidance and vowed to follow it going forward.

But assessing whether the gifts and hospitality described in the latest ProPublica report – which puts the tally at 38 destination vacations, 26 private jet flights, eight helicopter trips and a dozen VIP tickets to sporting events – would require disclosure, either then or under the tightened rules, is a complicated question. It sometimes depends on details about how the high-end trips were financed that were not fully fleshed out by the report.

“The question is: Who is absorbing the cost?” said Stephen Gillers, a New York University School of Law professor who has written extensively about legal ethics and rules.

Thomas is not the only justice who has engaged in such jet-setting. When Justice Samuel Alito was the subject of a ProPublica report detailing a 2008 private flight he took to Alaska on a plane owned by a GOP megadonor, he argued in a preemptive essay published by Wall Street Journal’s opinion section that he was not required to disclose it under ethics rules in place at the time. Alito claimed that plane trip fit the definition of “facility” in the requirements’ exemptions for personal hospitality extended to judges “on property or facilities owned by (a) person”

Ethics experts have pushed back on the idea that a private flight could be interpreted to fall under the term “facility.” The new guidance announced in March makes clear that going forward, private plane trips cannot be excluded from the reporting requirements because “substitutes for commercial transportation” are not part of the exemptions.

ProPublica’s latest report, published Thursday, surfaces several helicopter trips that Thomas took apparently at the expense of his billionaire benefactors. Even under the new guidance, there could be some argument that certain helicopter trips may not require disclosure, according to Gillers, who gave the example of a helicopter ride over the Grand Canyon.

Since such a ride would not be a replacement of a commercial flight, but instead a form of entertainment offered by a friend, disclosure could potentially be avoided. But another key question, under the new guidance, is whether the helicopter ride was being paid for personally by the friend of the judge.

The new guidance states that accommodations offered to a judge that are not paid for out of the personal pocketbook of an individual – but through a third-party entity, which could include the friend’s company or another business – would require disclosure. If the person footing the cost is seeking a tax deduction for the expense of the accommodation or gift, that would also trigger a judge’s reporting requirement.

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

That means if the helicopter rides described in the ProPublica report – which Thomas occasionally enjoyed in the mid-2000s because of his friendship with the late corporate titan Wayne Huizenga – were on a helicopter owned by Huizenga’s business, Thomas would have to disclose them under the new rules. Even if Huizenga owned the helicopter personally, if he put the cost of the rides toward a tax exemption, that would also mean Thomas’ helicopter jaunts would fall outside of the exemptions.

Thomas’ friendships with oil baron Paul “Tony” Novelly and real estate mogul Harlan Crow have led to the billionaires hosting him on their mega-yachts. Those trips have included ventures with Novelly in the Bahamas and island-hopping with Crow in Indonesia. Since Thomas presumably was sleeping on the yachts, he can argue they’re covered by the disclosure exception for accommodations personally offered by friends.

“Thomas could say that, just as a weekend at a country home at the invitation of a friend is personal hospitality, a week on my friend’s yacht is also personal hospitality. It’s just that one is on the land and one is on the water,” Gillers said.

Another area of scrutiny in the new ProPublica report is tickets to major sporting events – often for skybox seats – that Thomas received from his wealthy friends. Government ethics experts quoted in the story raised the disclosure requirement for gifts valued at more than $415 as potentially problematic for Thomas.

However, according to Gabe Roth, who heads the organization Fix the Court, the ethics questions over the tickets hinge more on the entertainment exemption for judges when they are receiving personal hospitality.

“You could make the argument that sporting tickets count as entertainment,” said Roth, whose group advocates for ethics reform and more transparency in the judiciary.

Thomas is not the only justice who has failed to report sporting event tickets on their disclosures. Justice Elena Kagan attended a University of Wisconsin football game – sitting in the Chancellor’s Box – in 2017 that went unreported on her disclosure for that year, according to a Fix the Court review.

Still, ProPublica points to the example of 60 lower court judges who reported sporting event tickets on their annual forms between 2003 and 2019.

It is a particularly complicated endeavor to decipher Thomas’ reporting obligations for the access he reportedly got, via his friendship with Huizenga, to an exclusive Florida golf course. The report describes a “standing invitation” Thomas had to the members-only course, the Floridian, but ProPublica said it was not clear whether Thomas was granted a full-fledged membership or whether he was just able to visit the course as a guest of Huizenga.

However, there are signs pointing toward disclosure for judges who do receive gifted golf club memberships. In his filing for 2008, Chief Justice John Roberts reported honorary memberships to two golf courses – valued in the thousands of dollars – that he was gifted, while even noting in the disclosure forms that he didn’t use the memberships.

“If that’s John Roberts’ interpretation of the federal disclosure law, I am going to side with him on this,” Roth said.

The latest investigation into Thomas’ conduct also hit on an issue that has emerged around several of the justices: whether their activity with certain charities and other organizations violates ethical standards limiting judges’ participation in fundraising.

ProPublica, piggybacking off recent reporting by The New York Times, dug into Thomas’ involvement with the Horatio Alger Association, which offers scholarships and mentorships to students, and which connected Thomas to some of the billionaire benefactors highlighted in the report.

Thomas, according to The Times and ProPublica, facilitated events for the organization that were hosted at the Supreme Court, with the latest investigation reporting that access to one such event cost $1,500 or more in contributions per person.

Under a set of ethics rules for the judiciary that are separate from the financial disclosure requirements, judges are barred from allowing the “prestige” of their office to be used for the purpose of fundraising.

“You can attend an event of an organization, a non-profit that serves as a fundraiser,” Gillers said. “But the justice or judge cannot be identified as an attraction for people to come and donate money.”

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August 2, 2023
EPA slashes federally protected waters by more than half after Supreme Court ruling | CNN Politics

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The Environmental Protection Agency and US Army on Tuesday released a new rule that slashes federally protected water by more than half, following a Supreme Court decision in May that rolled back protections for US wetlands.

The rule will invalidate an earlier definition of what constitutes the so-called waters of the United States, after the Supreme Court ruled Clean Water Act protections extend only to “wetlands with a continuous surface connection to bodies that are waters of the United States in their own rights.”

It could impact up to 63% of US wetlands by acreage and around 1.2 million to 4.9 million miles of ephemeral streams, an EPA spokesperson told CNN. An ephemeral stream is one that typically only has water flowing through it during and immediately after rain events.

The decision excluded wetlands and smaller tributaries from being protected as they had been for the last 45 years. The new rule will take effect immediately, according to a press release from the agencies.

EPA Administrator Michael Regan registered his displeasure with the spring SCOTUS decision but said the agency has worked swiftly to finalize it.

“While I am disappointed by the Supreme Court’s decision in the Sackett case, EPA and Army have an obligation to apply this decision alongside our state co-regulators, Tribes, and partners,” Regan said in a statement. “We’ve moved quickly to finalize amendments to the definition of ‘waters of the United States’ to provide a clear path forward that adheres to the Supreme Court’s ruling. EPA will never waver from our responsibility to ensure clean water for all.”

The newly finalized rule from the Biden administration means the US Army Corps of Engineers can resume issuing jurisdictional determinations that had been paused after the Supreme Court decision.

The decision provoked an outcry among environmental groups and drew a rare rebuke from conservative Supreme Court Justice Brett Kavanaugh, who dissented with the liberal justices. The majority had “rewritten the Clean Water Act” and ignored its text as well as “45 years of consistent agency practice,” Kavanaugh wrote.

Kavanaugh also wrote that the lands to be regulated did not have to physically touch an adjacent waterway to constitute “waters of the United States,” but that they could include wetlands that are “separated from a covered water only by a man-made dike or barrier, natural river berm, beach dune or the like.” He noted that eight different administrations since 1977 had recognized such wetlands as being protected.

The statutory text, Kavanaugh wrote, “does not require a continuous surface connection between those wetlands and covered waters.”

“By narrowing the (Clean Water) Act’s coverage of wetlands to only adjoining wetlands,” Kavanaugh wrote, “the court’s new test will leave some long-regulated adjacent wetlands no longer covered by the Clean Water Act, with significant repercussions for water quality and flood control throughout the United States.”

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August 2, 2023
When John Roberts wants things done, he acts. What that means for ethics rules | CNN Politics

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

So, much depends on the justices themselves.

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

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

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

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

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

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

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

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August 2, 2023
Federal court strikes down Alabama congressional map after legislature snubbed Supreme Court | CNN Politics

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A federal court blocked a newly drawn Alabama congressional map on Tuesday because it didn’t create a second majority-Black district as the Supreme Court had ordered earlier this year.

In a unanimous decision from a three-judge panel, which had overseen the case before it reached the Supreme Court, the judges wrote that they were “disturbed” by Alabama’s actions in the case.

The state had snubbed the Supreme Court’s order – a surprise 5-4 decision in June – that the maps should be redrawn. White voters currently make up the majority in six of the state’s seven congressional districts, although 27% of the state’s population is Black.

“We are deeply troubled that the State enacted a map that the State readily admits does not provide the remedy we said federal law requires,” wrote the judges, two of whom were appointed by former President Donald Trump.

Alabama officials on Tuesday filed notice that they are appealing the ruling.

“While we are disappointed in today’s decision, we strongly believe that the Legislature’s map complies with the Voting Rights Act and the recent decision of the U.S. Supreme Court,” the office of Alabama Attorney General Steven Marshall said in a statement. “We intend to promptly seek review from the Supreme Court to ensure that the State can use its lawful congressional districts in 2024 and beyond.”

Alabama officials also asked the three-judge court to freeze its opinion invalidating the congressional map but said they will formally ask the Supreme Court for a stay on Thursday.

This redistricting battle – and separate, pending litigation over congressional maps in states such as Georgia and Florida – could determine which party controls the US House of Representatives after next year’s elections. Republicans currently hold a razor-thin majority in the chamber.

The three federal judges overseeing the Alabama case on Tuesday ordered a special master to submit three proposed maps that would create a second Black-majority district by September 25.

The panel wrote that it was “not aware of any other case” in which a state legislature had responded to being ordered to a draw map with a second majority-minority district by creating one that the state itself admitted didn’t create the required district.

“The law requires the creation of an additional district that affords Black Alabamians, like everyone else, a fair and reasonable opportunity to elect candidates of their choice,” and Alabama’s new map, they wrote, “plainly fails to do so.”

JaTaune Bosby Gilchrist, executive director of the American Civil Liberties Union of Alabama, which has been fighting the case, praised the ruling: “Elected officials ignored their responsibilities and chose to violate our democracy. We hope the court’s special master helps steward a process that ensures a fair map that Black Alabamians and our state deserve.”

This summer, the Supreme Court, in a 5-4 ruling, had affirmed an earlier decision by the three-judge panel and ordered the state to redraw congressional maps to include a second majority-Black district or “something quite close to it.”

The Supreme Court’s surprise decision in Alabama – coming after the right-leaning high court has chipped away at other parts of the Voting Rights Act in recent years – has given fresh hope to voting rights activists and Democrats that they could prevail in challenges to other maps they view as discriminating against minorities.

But the new map approved by Alabama’s Republican-dominated legislature – and signed into law by GOP Gov. Kay Ivey – in July created only one majority-Black district and boosted the share of Black voters in a second district from roughly 30% to nearly 40%.

The pending cases center on whether GOP state legislators drew congressional maps after the 2020 census that weakened the power of Black voters in violation of Section 2 of the historic Voting Rights Act.

Republicans control all statewide offices in Alabama and all but one congressional seat. The single Black-majority congressional district is represented by Democratic Rep. Terri Sewell, the state’s first Black woman elected to Congress.

Alabama officials have argued that the map as redrawn by state lawmakers was aimed at maintaining traditional guidelines for congressional redistricting, such as keeping together communities of interest. And they have signaled that they hope to sway one of the Supreme Court justices who sided with the majority in June.

The state’s briefs before the three-judge panel referenced a concurring opinion by Justice Brett Kavanaugh – one of the two conservatives who sided with the liberal justices on the high court to vote against the original Alabama map – that questioned whether “race-based redistricting” can “extend indefinitely into the future.”

The lower-court judges weren’t convinced by the state’s arguments.

They wrote that after reviewing the concurrence, as well as a part of the Supreme Court’s ruling which Kavanaugh didn’t join, “We do not understand either of those writings as undermining any aspect of the Supreme Court’s affirmance; if they did, the Court would not have affirmed the injunction.”

The judges also rejected Alabama’s argument that drawing a second Black-majority district would unconstitutionally constitute “affirmative action in redistricting.”

“Unlike affirmative action in the admissions programs the Supreme Court analyzed in [this year’s affirmative action case], which was expressly aimed at achieving balanced racial outcomes in the makeup of the universities’ student bodies, the Voting Rights Act guarantees only ‘equality of opportunity, not a guarantee of electoral success for minority-preferred candidates of whatever race,’” the panel wrote.

“The Voting Rights Act does not provide a leg up for Black voters – it merely prevents them from being kept down with regard to what is arguably the most ‘fundamental political right,’ in that it is ‘preservative of all rights’ – the right to vote.”

Earlier, in a letter to state lawmakers, Marshall had argued that a separate Supreme Court ruling in June – after the high court’s Alabama redistricting decision came down – that ended affirmative action in college admissions meant that using a map in which “race predominates” would open up the state to claims that it was violating the 14th Amendment’s guarantee of equal protection.

This story has been updated with additional developments.

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August 2, 2023
A moment of reckoning for gerrymandering | CNN Politics
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A version of this story appeared in CNN’s What Matters newsletter. To get it in your inbox, sign up for free here.

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Americans’ reckoning with their own democracy extends beyond the looming presidential election to a much more local level.

There are new details about how the conservative-dominated US Supreme Court issued its most unexpected decision of the past year and threw out Alabama’s congressional map, part of a secret negotiation between Chief Justice John Roberts and Justice Brett Kavanaugh. Read that incredible behind-the-scenes reporting from CNN’s Joan Biskupic.

Meanwhile, in Wisconsin, the inverse is occurring – lawmakers who enjoy a majority thanks to gerrymandered state-level districts are keen on throwing out a liberal state Supreme Court justice even though she took the bench last month after being elected to a 10-year term.

State and federal courts are hearing challenges to maps across the country, which could have a major impact on the coming election and help determine who controls Congress.

Also this week:
A federal court has also thrown into question the congressional map drawn by Republicans that helped them gain seats in Florida.

There’s a trial over congressional maps underway in Georgia.
The selective drawing of legislative district maps during periods of redistricting after the US census every 10 years – colloquially known as gerrymandering – is a practice that has been the subject of political and court fights for most of the country’s history. The Supreme Court has said partisan gerrymandering done for political reasons is not its concern, but this year it reaffirmed that racial gerrymandering that keeps minorities shut out of the power structure is not allowed.

An endless series of adjustments has sought to address the issue of gerrymandering. These have ranged from major legislation like the Voting Rights Act in the 1960s to the adoption of nonpartisan or independent redistricting commissions in recent decades. The Congressional Research Service has a list of which states, many on the West Coast, have tried to de-politicize the process.

But lawmakers in multiple states continue to work hard to protect their party control, a battle that is being fought on multiple fronts.

Republicans in Alabama, for instance, unhappy with the Supreme Court’s decision this summer, essentially ignored the court by drawing a map that did not include an additional majority-Black district as the justices demanded. A federal court sent the state back to the drawing board again this week with the rebuke that it was “disturbed” by Alabama’s actions.

Alabama argued that creating a second majority-Black district would be a sort of “affirmative action.”

But the three-judge panel that threw out the map rejected that idea.

“The Voting Rights Act does not provide a leg up for Black voters – it merely prevents them from being kept down with regard to what is arguably the most ‘fundamental political right,’ in that it is ‘preservative of all rights’ – the right to vote.” Read more from CNN’s Fredreka Schouten and Ethan Cohen.

Alabama plans to appeal to the US Supreme Court again with an eye to changing Kavanaugh’s mind.

Gerrymandered lawmakers target anti-gerrymander judge

In Wisconsin, a Marquette University Law School review of data tells the story of how partisan gerrymandering – the kind the Supreme Court doesn’t concern itself with – makes it virtually impossible for Democrats to win the state’s assembly. When Gov. Tony Evers narrowly won statewide in 2018, he got 49.6%, or about half of the vote. But because of how the state’s legislative maps were drawn, the Republican then-Gov. Scott Walker got a majority in 63 of the state’s 99 assembly districts, just two fewer than in 2014, when Walker won a majority of votes in 2014.

It is lawmakers elected from Republican-friendly maps who now want to remove the liberal state Supreme Court justice, Janet Protasiewicz, from office in part for her opposition to the maps. Read more from CNN’s Eric Bradner.

North Carolina’s new Supreme Court overturns gerrymandering ruling

North Carolina Republicans tried to cut the state courts out of the federal redistricting and elections process altogether by pushing a fringe legal theory known as the “independent state legislature theory.” The US Supreme Court rejected that argument, which could have upended how federal elections are contested in a consequential decision earlier this year.

But North Carolina Republicans seem likely to ultimately get the map they want. Republicans gained a majority on the state’s Supreme Court this year, and the court has ruled it has no authority to oversee partisan gerrymandering.

There are many more legal fights over congressional maps underway. The US Supreme Court in June also allowed for the Louisiana congressional map to be redrawn to allow for another majority-Black district.

From CNN’s report on the Louisiana decision by Tierney Sneed: “Louisiana state officials were sued last year for a congressional map – passed by the Republican legislature over Democratic Gov. John Bel Edwards’ veto – that made only one of its six districts majority Black, despite the 2020 census showing that the state’s population is 33% Black.”

Congressional maps are in question in many states, including Georgia, where there is a trial underway in Atlanta.

Kentucky’s Supreme Court is set to hear arguments later this month about whether gerrymandered maps violate the state’s constitution.

On the flip side, Democrats are trying to get more friendly maps in New York, where a court-drawn map led them to lose congressional seats in 2022.

One way to view these court decisions is that the US Supreme Court allowing or insisting that maps in Alabama or Louisiana be redrawn could have a real impact on who controls Congress after the 2024 election. Republicans hold a tiny five-seat majority.

Another way to view these court decisions is that when the US Supreme Court allowed the GOP-drawn maps to be used in these states in the 2022 election, it helped Republicans gain that slim majority.
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August 2, 2023
Major Supreme Court cases to watch in the new term | CNN Politics

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Looking at an upcoming Supreme Court term from the vantage point of the first Monday in October rarely tells the full story of what lies ahead, but the docket already includes major cases concerning the intersection between the First Amendment and social media, gun rights, racial gerrymandering and the power of the executive branch when it comes to regulation.

The court will still determine if it will hear oral arguments on issues such as medication abortion and transgender rights, not to mention the possibility of a flurry of emergency requests related to the 2024 election.

Here are some of the key cases on which the court will hear oral arguments this term:

After the Supreme Court issued a major decision last year expanding gun rights nationwide, lower courts began reconsidering hundreds of firearms regulations across the country under the new standard crafted by Justice Clarence Thomas that a gun law passes legal muster only if it is rooted in history and tradition.

On the heels of that decision, a federal appeals court invalidated a federal law that bars an individual who is subject to a domestic violence restraining order from possessing a firearm. That law, the 5th US Circuit Court of Appeals ruled, “is an outlier that our ancestors would never have accepted.”

The Biden administration has appealed, saying the ruling “threatens grave harms for victims of domestic violence.”

In 2019, nearly two-thirds of domestic homicides in the United States were committed with a gun, according to Everytown for Gun Safety.

Lawyers for Zackey Rahimi, a man who was prosecuted under the law in 2020 after a violent altercation with his girlfriend, have urged the justices to let the lower court opinion stand, arguing in part that there is no law from the founding era comparable to the statute at hand.

Racial gerrymandering: South Carolina congressional maps

Justices will consider a congressional redistricting plan drawn by South Carolina’s Republican-controlled legislature in the wake of the 2020 census. Critics say it was designed with discriminatory purpose and amounts to an illegal racial gerrymander.

The case focuses the court’s attention once again on the issue of race and map drawing and comes after the court ordered Alabama to redraw the state’s congressional map last term to account for the fact that the state is 27% black. The decision, penned by Chief Justice John Roberts, surprised liberals who feared the court was going to make it harder for minorities to challenge maps under Section 2 of the historic Voting Rights Act.

In the latest case, the South Carolina State Conference of the NAACP and a Black voter named Taiwan Scott, are challenging the state’s congressional District 1 that is located along the southeastern coast and is anchored in Charleston County. Although the district consistently elected Republicans from 1980 to 2016, in 2018 a Democrat was elected in a political upset, though a Republican recaptured the seat in 2020.

The person who devised the map has testified that he was instructed to make the district “more Republican leaning,” but that he did not consider race. He did, however, acknowledge that he examined racial data after drafting each version and that the Black voting age population of the district was likely viewed during the drafting process.

A three-judge district court panel struck down the plan in January, saying that race had been the predominant motivating factor. “To achieve a target of 17% African American population,” the court said, “Charleston County was racially gerrymandered and over 30,000 African Americans were removed from their home district.”

Expert explains why Justice Thomas’ gifts from wealthy friends are problematic

In the latest attack against the so-called administrative state, the justices are considering whether to overturn decades old precedent to scale back the power of federal agencies, impacting how the government tackles issues such as climate change, immigration, labor conditions and public health.

At issue is an appeal from herring fishermen in the Atlantic who say the National Marine Fisheries Service does not have the authority to require them to pay the salaries of government monitors who ride aboard the fishing vessels.

In agreeing to hear the case, the justices signaled they will reconsider a 1984 decision – Chevron v. Natural Resources Defense Council – that sets forward factors to determine when courts should defer to a government agency’s interpretation of the law. First, they examine a statute to see if Congress’ intent is clear. It if is – then the matter is settled. But if there is ambiguity – the court defers to the agency’s expertise.

Solicitor General Elizabeth Prelogar told the justices that the agency was acting within the scope of its authority under the Magnuson-Stevens Fishery Conservation and Management Act and said the fishermen are not responsible for all the costs. The regulation was put in place to combat overfishing of the fisheries off the coasts of the US.

Representing the fishermen, former Solicitor General Paul Clement argues that the government exceeded its authority and needs direct and clear congressional authorization to make such a demand. “The ‘net effect’ of Chevron,” Clement said, is that it “incentives a dynamic where Congress does far less than the Framers anticipated, and the executive branch is left to do far more by deciding controversial issues via regulatory fiat”

For the second time in recent years, the court is taking aim at a watchdog agency created to combat unfair and deceptive practices against consumers, in a case that could deal a fatal blow to the future of the agency and send reverberations throughout the financial services industry.

At the center of the case at hand is the Consumer Financial Protection Bureau – an independent agency set up in the wake of the 2008 financial meltdown that works to monitor the practices of lenders, debt collectors and credit rating agencies.

Congress chose to fund the CFPB from outside the annual appropriations process to ensure its independence. As such, the agency receives its funding each year from the earnings of the Federal Reserve System. But the conservative 5th US Circuit Court of Appeals held last year that the funding scheme violates the Appropriations Clause of the Constitution, that, the court said “ensures Congress’ “exclusive power over the federal purse.”

According to the CFPB, the agency has obtained more than $18.9 billion in ordered relief, including restitution and canceled debts, for more than 195 million consumers, and more than $4.1 billion in penalties, in actions brought by the agency against financial institutions and individuals that have broken federal consumer financial protection laws.

A handful of other agencies have similar funding schemes including the Federal Reserve, the Federal Deposit Insurance Corporation and the Office of the Comptroller of the Currency.

Three years ago, the Supreme Court limited the independence of the CFPB by invalidating its leadership structure. A 5-4 court held that the structure violated the separation of powers because the president was restricted from removing the director, even if they had policy disagreements.

Agency regulatory authority: Securities and Exchange Commission

The justices are looking at the in-house enforcement proceedings of the US Securities and Exchange Commission in another case that invites the conservative majority to pare back the regulatory authority of federal agencies.

The court’s decision could impact whether the SEC and other agencies can conduct enforcement proceedings in-house, using administrative courts staffed with agency employees, or whether such actions must be brought in federal court.

On one side are critics of such agency courts who argue that they allow federal employees to serve as prosecutors, judges and jury, issuing rulings that could particularly hurt small businesses. On the other side are those who point out that several agencies, including the Social Security Administration, have such internal proceedings because the topics are often complex and the agency has more expertise than a federal judge.

The case arose in 2013 after the SEC brought an enforcement action against George Jarkesy, who had established two hedge funds with his advisory firm, Patriot28, for securities fraud.

The 5th Circuit ruled that the SEC’s proceedings deprive individuals of their Seventh Amendment right to a civil jury. In addition, the court said that Congress had improperly delegated legislative power to the SEC, which gave the agency unconstrained authority at times to choose the in-house administrative proceeding rather than filing suit in district court.

In December, the court will examine the historic multibillion-dollar Purdue Pharma bankruptcy settlement with several states that would ultimately offer the Sackler family broad protection from OxyContin-related civil claims.

Until recently, Purdue was controlled by the Sackler family, who withdrew billions of dollars from the company before it filed for bankruptcy. The family has now agreed to contribute up to $6 billion to Purdue’s reorganization fund on the condition that the Sacklers receive a release from civil liability.

The Biden administration, representing the US Trustee, the executive branch agency that monitors the administration of bankruptcy cases, has called the plan “exceptional and unprecedented” in court papers, noting that lower courts have divided on when parties can be released from liability for actions that caused societal harm.

“The plan’s release ‘absolutely, unconditionally, irrevocably, fully, finally, forever and permanently releases’ the Sacklers from every conceivable type of opioid-related civil claim – even claims based on fraud and other forms of willful misconduct that could not be discharged if the Sacklers filed for bankruptcy in their individual capacities,” Prelogar argued in court papers.

For the second year running, the justices will leap into the online moderation debate and decide whether states can essentially control how social media companies operate.

If upheld, laws from Florida and Texas could open the door to more state legislation requiring platforms such as Facebook, YouTube and TikTok to treat content in specific ways within certain jurisdictions – and potentially expose the companies to more content moderation lawsuits.

It could also make it harder for platforms to remove what they determine is misinformation, hate speech or other offensive material.

“These cases could completely reshape the digital public sphere. The question of what limits the First Amendment imposes on legislatures’ ability to regulate social media is immensely important – for speech, and for democracy as well,” said Jameel Jaffer, the executive director of Columbia University’s Knight First Amendment Institute, in a statement.

“It’s difficult to think of any other recent First Amendment cases in which the stakes were so high,” Jaffer added.

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August 2, 2023
Conservative justices suggest South Carolina GOP gerrymandering was based on politics, not race | CNN Politics

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The Supreme Court’s conservatives expressed doubt at oral arguments Wednesday that South Carolina GOP lawmakers engaged in impermissible racial gerrymandering when they redrew congressional lines for a House seat to benefit Republicans.

The case is one of several racial and political gerrymandering-related lawsuits that could impact which party controls the House after next year’s congressional elections.

The district at issue was reworked in 2020 to benefit the GOP and current incumbent, Rep. Nancy Mace – one of the eight Republicans who voted to oust Kevin McCarthy as House speaker last week.

The South Carolina State Conference of the NAACP and a Black voter named Taiwan Scott say the use of race dominated the decision-making process and that the state worked to intentionally dilute the power of Black voters. A federal court agreed, referring to the revised map as “bleaching.”

Several of the conservative justices on Wednesday suggested that map drawers had taken politics into consideration, not race.

Chief Justice John Roberts said those challenging the map had “no direct” evidence that race had predominated in the decisionmaking process. He said that there were no “odd-shaped” districts drawn and that there existed a “wealth of political data” that would justify the chosen boundaries. He said the challengers had only presented “circumstantial evidence” and suggested the court would be “breaking new ground” in its voting jurisprudence if it were to side with them.

Justice Samuel Alito repeatedly suggested that a lower court had made serious legal error in invalidating the map by relying upon erroneous expert testimony. He said the Supreme Court could not “rubber-stamp” the district court’s finding and he noted that the individual charged with drawing the maps had years of experience and had worked for both Democrats and Republicans.

Alito contended that there was “nothing suspicious” if a map drawer is aware of race as long as it is not a predominant factor when drawing lines.

Justice Neil Gorsuch said there was “no evidence ” that the legislature could have achieved its “partisan tile in any other way.”

For their part, the liberals on the court suggested that the Republican-controlled South Carolina Legislature adopted the maps by considering race as a predominant factor, in violation of the equal protection clause of the US Constitution.

Justice Sonia Sotomayor said that Republicans were launching “pot shots” at the experts who claimed the maps could only be explained by race. Justice Ketanji Brown Jackson noted that the challengers are not required to produce a “smoking gun” to prove their point.

The dispute comes as the justices this year ordered Alabama to redraw its congressional map to account for the states’ 27% Black voting population. That decision, penned by Roberts, came as a welcome relief to liberals who feared that the court was poised to make it harder for minorities to challenge maps under Section 2 of the historic Voting Rights Act. A federal court approved a new map last week that significantly boosts the Black population in a second district, which could lead to the pickup of a Democratic seat next year.

The South Carolina case raises different questions rooted in the Constitution concerning when a state crosses the line between permissible partisan goals and illegal racial discrimination.

The state chapter of the NAACP and Scott are challenging the state’s 1st Congressional District, located along the southeastern coast and anchored in Charleston County. Although the district consistently elected Republicans from 1980 to 2016, in 2018 a Democrat was elected in a political upset.

Two years later a Republican candidate, Mace, regained the seat in a close race. When the state House and Senate began considering congressional reapportionment in 2021, the Republican majorities sought to create a stronger GOP tilt in the district, one of seven in the state. A new map could make the seat more competitive.

After an eight-day trial featuring 42 witnesses and 652 exhibits, a three-judge district court panel in January held that District 1 amounted to an unconstitutional racial gerrymander in violation of the Equal Protection Clause of the 14th Amendment because race was the predominant factor in the district’s reapportionment plan.

“To achieve a target of 17% African American population,” the court said, “Charleston County was racially gerrymandered and over 30,000 African Americans were removed from their home district.” The court referred at one point to the “bleaching” of Black voters out of the Charleston County portion of the district.

“State legislators are free to consider a broad array of factors in the design of a legislative district, including partisanship, but they may not use race as a predominant factor and may not use partisanship as a proxy for race,” the court concluded.

South Carolina Republicans, led by state Senate President Thomas Alexander, appealed the decision to the Supreme Court, arguing that the maps had not been drawn impermissibly based on race, but instead with politics in mind.

The person who devised the map testified in federal court that he was instructed to make the district “more Republican leaning,” but that he did not consider race while drawing the lines. He did, however, acknowledge that he examined racial data after drafting each version and that the Black voting-age population of the district was viewed during the drafting process.

“If left uncorrected, the panel’s holding would place States in an impossible bind by exposing them to potential racial gerrymandering liability whenever they decline to make majority-white, modestly-majority Republican districts majority-Democratic,” argued John Gore, a lawyer for the Republicans.

Mace filed a friend-of-the-court brief with the high court in support of the Republicans, charging that the lower court “ignored one of the most important traditional districting principles – the preservation of the core of existing districts.”

Joined by other GOP members of Congress from South Carolina, Mace argued that constituent services, voter education and the seniority of long-serving members of the House are “vital interests” and that the lower court was “bent on destroying the legislatures’ duly enacted and carefully negotiated map.”

Lawyers for the NAACP Legal Defense and Educational Fund told the justices in court papers that the state impermissibly used race as a predominant factor when drawing the district.

“Using race as the predominant means to sort voters is unconstitutional even if done for partisan goals,” they argued.

They said the lower court made clear that the state “intentionally exiled more than 30,000 Black Charlestonians from CD1 predominately because of their race.”

This story has been updated with additional developments.

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August 2, 2023
Israeli government passes law to limit Supreme Court power, defying mass protests | CNN

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The Israeli parliament on Monday passed a law stripping the Supreme Court of its power to block government decisions, the first part of a planned judicial overhaul that has sharply divided Israeli society and drawn fierce criticism from the White House.

The controversial bill passed by a vote of 64-0 in the Knesset. All members of the governing coalition voted in favor the bill, while all opposition lawmakers walked out of the chamber as the vote was taking place.

Huge crowds of angry protesters gathered outside, attempting to block access to the building. They were met with barbed wire and water cannons and at least 19 were arrested, according to Israel Police. Thousands of military reservists – including more than 1,100 Air Force officers – said even before the bill passed that they would refuse to volunteer for duty if it did.

Former Israeli Prime Minister Yair Lapid said he would file a petition with the Supreme Court on Tuesday to block the law and has urged the military reservists not to refuse to serve until the court delivers its ruling.

The so-called reasonableness law takes away the Supreme Court’s power to block government decisions by declaring them unreasonable. Its passing could trigger a constitutional crisis – if the court declares the law itself is unreasonable.

The Movement for Quality Government, an Israeli NGO, filed a petition with the Supreme Court immediately after the vote took place, asking the court to declare the law illegal on the grounds that it changes the basic structure of Israeli democracy, and requesting that it block its implementation until the court has ruled on it.

In pictures: Israelis protest as lawmakers plan judicial overhaul

Prime Minister Benjamin Netanyahu, who left hospital on Monday morning after having been fitted with a pacemaker, pushed the bill through despite Israel’s most important ally, the United States, issuing increasingly forceful warnings not to do so.

In a highly unusual step, the US President Joe Biden weighed in on the policy and warned that rushing the changes through without a broad consensus amounts to an erosion of democratic institutions and could undermine US-Israel relations.

“Given the range of threats and challenges confronting Israel right now, it doesn’t make sense for Israeli leaders to rush this – the focus should be on pulling people together and finding consensus,” Biden said in a statement provided to CNN on Sunday.

Biden raised concerns directly with Netanyahu during a phone call last week and then called New York Times columnist Thomas Friedman to the Oval Office to make clear his stance on the judicial overhaul.

Speaking after the Knesset passed the bill on Monday, the White House said it was “unfortunate that the vote today took place with the slimmest possible majority.”

The Israeli stock market dropped after the vote, its main index, the TA-35, trading more than 2% lower. The Israeli Shekel was also weaker against the dollar, dropping just under 1%.

The fierce debate over the planned judicial overhaul has turned into a battle over the soul of the Israeli state. It has pitted a coalition of right-wing and religious groups against the secular, liberal parts of Israeli society and sparked the longest and largest protests in the country’s 75-year history.

The fight is happening against the backdrop of some of the worst violence in many years. The number of Palestinians, militants and civilians, killed in the occupied West Bank by Israeli forces is at its highest in nearly two decades. The same is true of Israelis and foreigners – most of them civilians – killed in Palestinian attacks.

Israel, which has no written constitution and no upper chamber of the parliament, has had a relatively powerful Supreme Court, which supporters of the changes argue is problematic. At the same time, the Supreme Court is the only check on the power of the Knesset and the government, since the executive and legislative branches are always controlled by the same governing coalition.

Netanyahu and his allies call the measures “reforms” and say they are required to rebalance powers between the courts, lawmakers and the government. Other parts of the planned overhaul which are yet to be voted on by the Knesset would give Netanyahu’s coalition more control over the appointment of judges, and would remove independent legal advisers from government ministries.

Opponents of the plan call it a “coup” and say it threatens to turn Israel into a dictatorship by removing the most significant checks on government actions.

Netanyahu was forced to pause the legislative process earlier this year, but resumed it earlier this month. He has argued that the Supreme Court has become an insular, elitist group that does not represent the Israeli people.

But critics say Netanyahu is pushing the overhaul forward in part to protect himself from his own corruption trial, where he faces charges of fraud, bribery and breach of trust. He denies any wrongdoing.

Another bill, already voted through in March, makes it more difficult for a sitting prime minister to be declared unfit for office, restricting the reasons to physical or mental incapacity and requiring either the prime minister themselves, or two-thirds of the cabinet, to vote for such a declaration.

Despite his victory on Monday, Netanyahu is likely to face more pressure over the reforms.

The mass protests that have engulfed Israel since the reforms were first announced in January and are unlikely to stop now. After hearing the law has passed, protesters outside the Knesset began marching around, chanting “We will not give up. We will not give up until it’s better here.”

The Israel Bar Association is already preparing a legal challenge to the bill, the lawyers’ group said Sunday. The Bar is also warning it will shut down “as an act of protest against the anti-democratic legislative process,” the statement said. That means the Bar Association would not provide professional services to its members, not that lawyers would go on strike.

Israel’s umbrella labor union, the Histadrut, warned moments after the government passed the reasonableness bill that if the government continued to legislate unilaterally, there would be serious consequences.

The law still needs to be rubber stamped by Israel’s President Isaac Herzog, a formality under Israel’s political system.

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July 24, 2023
‘Race neutral’ replaces affirmative action. What’s next? | CNN Politics

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When the Supreme Court cut affirmative action out of college admissions programs Thursday, it did not outlaw the goal of achieving diversity, but it set a new “race-neutral” standard for considering applicants.

That term – “race neutral” – does not appear in the opinion of the court, written by Chief Justice John Roberts, which states that colleges and universities have “concluded, wrongly, that the touchstone of an individual’s identity is not challenges bested, skills built, or lessons learned but the color of their skin.”

But when Roberts clarifies that students can still refer to their race in admissions essays, explaining challenges they’ve overcome, he and the majority are buying into the idea of race neutrality.

Justice Clarence Thomas, who wrote his own concurring opinion, uses the term “race neutral” repeatedly, offering it as an antidote to affirmative action.

Pointing to efforts in California and Michigan to enroll diverse classes at top universities even after voters in those states ended affirmative action, Thomas says race-neutral policies can “achieve the same benefits of racial harmony and equality without any of the burdens and strife generated by affirmative action policies.”

Justice Sonia Sotomayor shot back at Thomas and the majority, rejecting the term.

“The majority’s vision of race neutrality will entrench racial segregation in higher education because racial inequality will persist so long as it is ignored,” she wrote.

For more on this view, read this piece in The Atlantic by scholars Uma Jayakumar and Ibram Kendi: “‘Race Neutral’ Is the New ‘Separate but Equal.’”

If the experience of California and Michigan – where voters ended affirmative action programs years ago – is any indication, we can expect that the representation of Black and Latino students at top-level universities will fall.

Those states argued in briefings to the court that their race-neutral efforts have not been completely successful, particularly at top-tier, flagship public schools, in creating environments that are inclusive for all.

California has, according to its brief, tried race-neutral measures that “run the gamut from outreach programs directed at low-income students and students from families with little college experience, to programs designed to increase UC’s geographic reach, to holistic admissions policies.”

While it has made strides, it says, there is a shortfall “especially apparent at UC’s most selective campuses, where African American, Native American, and Latinx students are underrepresented and widely report struggling with feelings of racial isolation.”

In California, half of the college-age population – 18-24 – is Latino, according to data from the Public Policy Institute of California. Compare that with just 27% of enrollees for 2022 at the University of California’s nine undergraduate campuses who the UC system categorizes as Hispanic/Latinx.

On the other hand, less than 13% of the college-age population is Asian, compared with 38% of UC enrollees.

A little more than quarter of college-age Californians are White, compared with 18% of UC enrollees.

Five percent of UC enrollees are African American, which is about on par with the 5.6% of college-age Californians who are Black.

The figures change in comparison with the system overall at UC Berkeley, the system’s flagship undergraduate campus, where a smaller portion of entrants in 2022 were categorized as African American / Black (3.6%) and Chicanx / Latinx (21.1%), and more were White (30.7%) and Asian (52.1%).

It’s also interesting to note that the Supreme Court exempted military academies from the decision. They can, presumably, still utilize affirmative action even though they are the higher learning institutions over which the federal government has the most control. The court, according to the majority opinion, feels the academies have “potentially distinct interests.”

Those interests were perhaps outlined by former military leaders who wrote a brief last year arguing affirmative action aided national security.

Meanwhile, even though race is off the table as a determinative factor, schools like Harvard University can and still will very much take into account whether an applicant’s parents went there, how much their parents might be able to donate and whether an applicant can help their sports teams.

“While the actual language of the Supreme Court will come across as very intellectualized and esoteric, as if in a classroom, in reality, how will this work?” wondered Laura Coates, CNN’s chief legal analyst, appearing on the network Thursday.

“How will you be able to have certain color blindedness but then at the same time allowed to take into account one’s experiences when race has been a part of that? That’s the devil in the details of every affirmative action case.”

CNN’s Nicquel Terry Ellis wrote about what the data suggests will happen:

A study by the Georgetown University Center on Education and the Workforce found that colleges and universities are less likely to meet or exceed their current levels of racial diversity in the absence of race-conscious admissions. They are also less likely to reflect the racial makeup of the population graduating from the nation’s high schools.

Zack Mabel, a researcher for Georgetown’s Center for Education and the Workforce, told her race-neutral practices have not driven the diversity many colleges hoped for, and some students are simply not applying. Read more from Terry Ellis.

Creating a more equitable and representative workforce has been a public aim in corporate America, where companies have created diversity, equity and inclusion, or DEI, departments. Multiple corporations – from Apple to IKEA – asked the Supreme Court to allow affirmative action to continue so that their potential workforce is more diverse.

But efforts to recruit students of color in the race-neutral, post-affirmative-action world will be complicated in states where there is a growing backlash to diversity efforts.

CNN’s Leah Asmelash recently wrote:

More than a dozen state legislatures have introduced or passed bills reining in DEI programs in colleges and universities, claiming the offices eat up valuable financial resources with little impact.

“The ruling by the Court’s six Republican-appointed justices prevents higher-education institutions from considering race in admissions precisely as kids of color, for the first time, comprise a majority of the nation’s high-school graduates,” writes Ronald Brownstein, a senior editor at The Atlantic and a senior political analyst for CNN.

He suggests the decision will “widen the mismatch between a youth population that is rapidly diversifying and a student body that is likely to remain preponderantly white in the elite colleges and universities that serve as the pipeline for leadership in the public and private sectors.”

Rather than ease social tension, he argues, the new race-neutral requirement could actually propel it.

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July 1, 2023
Federal judge slams Supreme Court in gun case while reluctantly ruling in favor of convicted felon | CNN Politics

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A federal judge in Mississippi ruled in favor of a convicted felon in a gun case on Wednesday while simultaneously slamming a recent landmark Second Amendment decision that expanded gun rights and changed the framework lower courts must use as they analyze firearm restrictions.

In his ruling, Judge Carlton Reeves, an Obama appointee who has previously been critical of the Supreme Court decision, dismissed a federal criminal case against a man prosecuted for possessing a firearm despite a past felony conviction prohibiting further gun ownership. The apparent reluctant decision announced by Reeves in his 77-page opinion included a blistering assessment of recent Supreme Court precedent pertaining to guns and public safety.

At issue was a case involving Jessie Bullock, a Mississippi man who was previously imprisoned for approximately 15 years after being convicted for aggravated assault and manslaughter following a bar fight in 1992.

Bullock was indicted 26 years later after being found to be a past felon in possession of a firearm, according to the ruling, but petitioned for his case to be dismissed following a landmark Supreme Court ruling last summer.

That decision, New York State Rifle & Pistol Association v. Bruen, changed the framework judges must use to review gun regulations and determined that modern-day laws restricting gun ownership are only constitutional if similar regulations were in place when the Constitution was drafted.

Going forward, Justice Clarence Thomas said that a gun law could only be justified if it is “consistent with this Nation’s historical tradition of firearm regulation.”

Last November, Reeves released a scorching order expressing frustration with the high court’s new historical legal standard, insisting it had inflicted confusion upon lower courts, and ordered the Justice Department to brief him on whether he needs to appoint an historian to help him decipher the landmark opinion.

“This court is not a trained historian,” Reeves wrote last year.

“The justices of the Supreme Court, as distinguished as they may be, are not trained historians,” he continued.

“And we are not experts in what white, wealthy and male property owners thought about firearms regulation in 1791,” he said.

In response to Reeves’ request to the Justice Department for clarity, the Biden administration last year defended a federal statute barring felons from possessing firearms and urged the court not to hire an historian, arguing that the government should win the case without such an intervention.

In his decision Wednesday dismissing the case against Bullock, Reeves acknowledged the government was in the “unenviable position” of pointing to certain past laws barring felons from possessing firearms, but nevertheless ruled that the Justice Department had not met the burden required to show laws barring felons from possessing firearms met the Bruen decision’s historical test.

But Reeves repeated his past complaints blasting the entire process courts must now use to determine whether a present-day law had a historical analogue at the time of the founding of the nation.

“Judges are not historians,” he once again wrote. “We were not trained as historians. We practiced law, not history. And we do not have historians on staff.”

Reeves also appeared to criticize the very notion of deciding modern laws through the lens of colonial times.

“Bruen shows us that originalism is now the Supreme Court’s dominant mode of constitutional interpretation,” he wrote. “This Court is not so sure it should be.”

Reeves added, “This Court is also not sure that ceding this much power to the dead hand of the past is so wise.”

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June 29, 2023
Supreme Court rejects affirmative action at colleges as unconstitutional

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The Supreme Court on Thursday ruled that the affirmative action admission policies of Harvard and the University of North Carolina are unconstitutional.

The ruling is a massive blow to decades-old efforts to boost enrollment of minorities at American universities through policies that took into account applicants’ race.

“Eliminating racial discrimination means eliminating all of it,” wrote Chief Justice John Roberts in the majority opinion, which all five of his fellow conservative justices joined in.

Roberts wrote said that both Harvard’s and UNC’s affirmative action programs “unavoidably employ race in a negative manner, involve racial stereotyping, and lack meaningful end points.”

“We have never permitted admissions programs to work in that way, and we will not do so today,” Roberts wrote, finding that the universities’ policies violated the equal protection clause of the Constitution’s 14th Amendment. The clause bars states from denying people equal protection under the law.

Protesters gather in front of the U.S. Supreme Court as affirmative action cases involving Harvard and University of North Carolina admissions are heard by the court in Washington on Monday, October 31, 2022.

Bill Clark | Cq-roll Call, Inc. | Getty Images

The chief justice added, however, that “nothing prohibits universities from considering an applicant’s discussion of how race affected the applicant’s life, so long as that discussion is concretely tied to a quality of character or unique ability that the particular applicant can contribute to the university.”

Justice Clarence Thomas, a Black conservative who wrote a concurring opinion, said that the schools’ affirmative action admissions policies “fly In the face of our colorblind Constitution.”

“Two discriminatory wrongs can not make a right,” wrote Thomas.

In her dissent to the majority, liberal Justice Ketanji Brown Jackson, who is Black, called the ruling “truly a tragedy for us all.”

Her fellow liberal, Justice Sonia Sotomayor, said, “Today, this Court stands in the way and rolls back decades of precedent and momentous progress.”

Sotomayor, calling the ruling “profoundly wrong” and “devastating,” said that the majority “holds that race can no longer be used in a limited way in college admissions to achieve such critical benefits.”

U.S. Supreme Court Justice Sonia Sotomayor

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In doing so, she argued the Supreme Court “cements a superficial rule of colorblindness as a constitutional principle in an endemically segregated society where race has always mattered and continues to matter.”

Thursday’s ruling dealt with two separate, but related cases, one for Harvard, the other for UNC.

In the Harvard case, the vote on the decision was 6-2, with Jackson taking no part in considering the case. Jackson last year during her Senate confirmation hearings agreed to recuse herself in the case involving Harvard, whose Board of Overseers she served on until early 2022.

Proponents for affirmative action in higher education rally in front of the U.S. Supreme Court before oral arguments in Students for Fair Admissions v. President and Fellows of Harvard College and Students for Fair Admissions v. University of North Carolina on October 31, 2022 in Washington, DC.

Chip Somodevilla | Getty Images

In the UNC case, the vote was 6-3, with Jackson participating in considering the case and dissenting with Sotomayor and Justice Elena Kagan, the court’s third liberal.

President Joe Biden said, “The court has effectively ended affirmative action in college admissions, and I strongly, strongly disagree with the court’s decision.”

“Discrimination still exists in America,” Biden said at the White House, repeating that phrase several times. “Today’s decision does not change that.”

Asked by a reporter if “this a rogue court,” Biden paused at a door he was about to exit through, and was silent for several seconds.

“This is not a normal one,” Biden finally said.

People exit Harvard Yard in Cambridge, Massachusetts, on June 29, 2023.

Joseph Prezioso | AFP | Getty Images

Harvard in a lengthy statement said, “We will certainly comply with the Court’s decision.”

But the statement added, “In the weeks and months ahead, drawing on the talent and expertise of our Harvard community, we will determine how to preserve, consistent with the Court’s new precedent, our essential values.”

Harvard, which began classes in 1636, did not admit Black undergraduates until 1847, the university noted.

UNC Chancellor Kevin Guskiewicz, in a statement, said, “Carolina remains firmly committed to bringing together talented students with different perspectives and life experiences and continues to make an affordable, high-quality education accessible to the people of North Carolina and beyond.”

“While not the outcome we hoped for, we will carefully review the Supreme Court’s decision and take any steps necessary to comply with the law,” Guskiewicz said.

Jean Camejo, a student at the University of North Carolina, speaks on campus to Reuters about affirmative action as the Supreme Court weighs the issue of race-conscious admissions to colleges, in Chapel Hill, North Carolina, U.S., March 28, 2023.

Jonathan Drake | Reuters

Former President Donald Trump, who is seeking the 2024 Republican presidential nomination, in a statement said, “This is a great day for America.”

“We’re going back to all merit-based — and that’s the way it should be!” said Trump, who graduated from the Wharton School at the University of Pennsylvania, an Ivy League school like Harvard, after growing up the son of a wealthy New York real estate developer.

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In a footnote to the majority opinion in the case, Roberts indicated that the decision does not apply to the United States military academies.

The Biden administration had filed a legal brief arguing that race-based admissions to American colleges further “compelling interests” at the military academies, Roberts noted.

“No military academy is a party to these cases, however, and none of the courts below addressed the propriety of race-based admissions systems in that context,” he wrote. “This opinion also does not address the issue, in light of the potentially distinct interests that military academies may present.”

NAACP CEO Derrick Johnson blasted the ruling, saying in a statement, “Today the Supreme Court has bowed to the personally held beliefs of an extremist minority.”

“We will not allow hate-inspired people in power to turn back the clock and undermine our hard-won victories,” said Johnson.

“The tricks of America’s dark past will not be tolerated. Let me be clear – affirmative action exists because we cannot rely on colleges, universities, and employers to enact admissions and hiring practices that embrace diversity, equity and inclusion. Race plays an undeniable role in shaping the identities of and quality of life for Black Americans.”

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June 29, 2023
Justices Clarence Thomas and Ketanji Brown Jackson criticize each other in unusually sharp language in affirmative action case | CNN Politics

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The Supreme Court’s landmark ruling Thursday on affirmative action pitted its two Black justices against each other, with the ideologically opposed jurists employing unusually sharp language attacking each other by name.

The majority opinion authored by Chief Justice John Roberts said colleges and universities can no longer take race into consideration as a specific basis for granting admission, saying programs at Harvard and the University of North Carolina violated the Equal Protection Clause because they failed to offer “measurable” objectives to justify the use of race.

Justice Clarence Thomas and the court’s other four conservatives joined Roberts’ opinion. But Thomas, who in 1991 became the second Black person to ascend to the nation’s highest court, issued a lengthy concurrence that attacked such admissions programs and tore into arguments posited by liberal Justice Ketanji Brown Jackson, the first Black woman to join the court, who penned her own fiery dissent in the case.

Thomas has previously acknowledged that he made it to Yale Law School because of affirmative action, but he has long criticized such policies. He spoke in personal terms in his concurrence as he put forth his argument against the use of the policies, which he described as “rudderless, race-based preferences designed to ensure a particular racial mix in their entering classes.”

“Even in the segregated South where I grew up, individuals were not the sum of their skin color,” Thomas wrote.

“While I am painfully aware of the social and economic ravages which have befallen my race and all who suffer discrimination,” he added, “I hold out enduring hope that this country will live up to its principles so clearly enunciated in the Declaration of Independence and the Constitution of the United States: that all men are created equal, are equal citizens, and must be treated equally before the law.”

As he read his concurrence from the bench on Thursday, Jackson, who joined the court last year, stared blankly ahead. Though Justice Sonia Sotomayor read her dissent from the bench, Jackson did not read her own dissent, in which she went after Thomas’ concurrence and accused the majority of having a “let-them-eat-cake obliviousness” in how the ruling announced “‘colorblindness for all’ by legal fiat.”

A footnote near the end of Jackson’s dissent went after the concurrence by Thomas, with the liberal justice accusing her colleague of demonstrating “an obsession with race consciousness that far outstrips my or UNC’s holistic understanding that race can be a factor that affects applicants’ unique life experiences.”

“Justice Thomas ignites too many more straw men to list, or fully extinguish, here,” Jackson wrote. “The takeaway is that those who demand that no one think about race (a classic pink-elephant paradox) refuse to see, much less solve for, the elephant in the room – the race-linked disparities that continue to impede achievement of our great Nation’s full potential.”

In her broader dissent, Jackson said that the argument made by the challengers that affirmative action programs are unfair “blinks both history and reality in ways too numerous to count.”

“But the response is simple: Our country has never been colorblind,” Jackson said.

(While Jackson recused herself from the Harvard case, she did hear the UNC case, and her dissent was focused on the latter.)

Thomas then explicitly attacks Jackson’s opinion.

“As she sees things, we are all inexorably trapped in a fundamentally racist society, with the original sin of slavery and the historical subjugation of black Americans still determining our lives today,” Thomas wrote.

“Worse still, Justice Jackson uses her broad observations about statistical relationships between race and select measures of health, wealth, and well-being to label all blacks as victims,” Thomas wrote at another point in his concurrence. “Her desire to do so is unfathomable to me.”

‘You don’t have to be perfect’: Watch Judge Jackson’s emotional message to her girls

Thomas, one of the court’s most conservative members, has long been known for his distaste for affirmative action policies. He has been open about the fact that he made it to Yale because of affirmative action, but says the stigma of preferential treatment made it difficult for him to find a job after college.

In his memoir, “My Grandfather’s Son,” Thomas says he felt “tricked” by paternalistic Whites at Yale who recruited Black students.

“After graduating from Yale, I met a black alumnus of the University of Michigan Law School who told me that he’d made a point of not mentioning his race on his application. I wished with all my heart that I’d done the same,” he wrote.

“I learned the hard way that a law degree from Yale meant one thing for White graduates and another for blacks, no matter how much anyone denied it,” Thomas wrote. “As a symbol of my disillusionment, I peeled a fifteen-cent price sticker off a package of cigars and stuck it one the frame of my law degree to remind myself of the mistake I’d made by going to Yale.”

He dissented in the 2003 case Grutter v. Bollinger, which allowed for the limited use of race in college admissions.

“I believe blacks can achieve in every avenue of American life without the meddling of university administrators,” he wrote in his dissent.

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June 29, 2023