This is what instability looks like (the courts, not me)
The Supreme Court conservatives brought on instability, and they're not stopping — not even during their summer recess. The 1/6 Committee was back in prime time. And: One month of Law Dork.
It’s hard to believe that it’s only been a month since I launched this newsletter.
So much has happened, and yet, in a lot of ways, much of what we have seen is setting up future developments that are going to happen all over the country.
In the first month — a busy month, given the Supreme Court — I published 16 newsletters.
In that first month, Law Dork has had an impact on the national discussion of this historic, out-of-control Supreme Court term, the fallout from it, and more. Law Dork’s coverage has already been cited by by The Washington Post, The Marshall Project, New York Magazine’s Intelligencer, Mediaite, Sentencing Law and Policy, and Wonkette, among other publications. I also talked with Parker Malloy at The Present Age about starting the newsletter and Rob Rousseau and Jordan Uhl at The Insurgents podcast about all things SCOTUS.
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INSTABILITY: When it comes to the courts, I wrote at Grid back in January about where things were at — and going:
A main goal of a legal system is to provide stability. It provides a common set of guiding rules for everyone under the system’s jurisdiction. And while there is much to be written, said and argued about the ways in which the legal system does not apply equally to everyone, that is a different issue than the phase the American legal system seems to be entering.
If th[e Supreme C]ourt does what it appears ready to do, on at least some key fronts, the country could be headed toward a period of great instability in what laws themselves even mean.
I regret to report: That’s what the court has done, and that’s where we are.
We are in a place where it is not just sensible, but necessary, for doctors to make sure that caring for their patients won’t land them in prison.
We are in a place where same-sex couples are talking with lawyers about what steps they need to take to protect their relationships.
And, most immediately, we are in a place where women and other pregnant people are learning daily if and when and how their state is trying to limit or ban their reproductive freedom and ability to get an abortion.
We are also in a place where the Supreme Court isn’t only going after existing constitutional rights; the conservatives on the court are also going after the administrative state through the use of the “major questions” doctrine, which has the potential to limit how much a president can do to effect change.
This has created a sort of two-tier level of instability: Not only are constitutional rights in question, but the executive branch’s ability to provide protections outside of those constitutional protections without new legislation has been thrown into doubt. (None of that, moreover, even begins to address the court’s expansion of other rights, which adds more instability into the system — and the country.)
All of this is happening even as the Supreme Court has teed up a pair of cases to upend, but likely outright end, affirmative action in higher education (at least). And, the court will be hearing Moore v. Harper, the North Carolina case raising the “independent state legislature” theory. While the Supreme Court has already taken many steps to minimize the role of the federal courts in protecting voting rights, this case could shut state courts to challenges over states’ policies regarding federal elections as well.
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I REPEAT, INSTABILITY: The Supreme Court will not allow anything like the summer recess to stop it from issuing decisions that create further instability.
A little past 5 p.m. on July 21, the Supreme Court issued a 5-4 order denying the Biden administration’s request that it be allowed to enforce the Department of Homeland Security’s immigration priorities guidance while litigation brought by Texas and Louisiana continues.
U.S. District Court Judge Drew B. Tipton in Texas, a Trump appointee, had tossed out the guidance and applied his order nationwide — meaning, as Justice Department lawyers told the Supreme Court, that DHS “has been forced to halt all implementation of the Guidance that had been charting the agency’s course for months.”
The court did agree to take up the administration’s appeal of the district court’s order, but it only set the oral arguments in the case for early December. Even if the justices ultimately reject the states’ lawsuit, therefore, the guidance almost certainly will be on hold at least into 2023.
The vote was Justice Ketanji Brown Jackson’s first recorded vote at the Supreme Court since joining the high court at the end of June. It also was the first time in U.S. history that four women voted in a Supreme Court decision. All four of them voted to put the district court decision on hold while the case proceeds — Trump appointee Justice Amy Coney Barrett joined the three Democratic appointees, Jackson and Justices Sonia Sotomayor and Elena Kagan — but none of the five men on the court joined the women.
In other words, this was a case where, if Chief Justice John Roberts had also joined the Democratic appointees, it would have made a difference. He did not do so.
PRIME TIME: The January 6 Committee held its eighth hearing — it second in prime time — on July 21. As USA Today’s Susan Page put it about the former president, “This time, it wasn't what he did. It was what he wouldn't do as a mob attacked the Capitol.” The live witnesses for the hearing were Matthew Pottinger, former deputy national security advisor to then-President Donald Trump, and Sarah Matthews, former deputy press secretary in the Trump White House.
There was a lot that the committee got through — from congressional leadership’s efforts to get help that day to Josh Hawley’s comical turn from wannabe-tough-guy to scrambling-to-get-to-safety-senator to Trump’s refusal even on Jan. 7 to acknowledge that the election was over — but it was a set of texts from toward the end of the hearing that really struck me.
On Jan. 9, the committee shared, Tim Murtaugh, the Trump 2020 campaign’s communications director, and a deputy discussed Trump’s complete lack of a response to the death of Capitol Police Officer Brian Sicknick on Jan. 7, with Murtaugh concluding that Trump couldn’t acknowledge it because it would be an attack on “his people” and “what he lit at the rally” — and therefore “something that could ultimately be called his fault.”
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