Posted tagged ‘Supreme Court’

Supreme Court Expedites Trump’s Petition on Executive Order Case

June 4, 2017

Supreme Court Expedites Trump’s Petition on Executive Order Case, BreitbartKen Klukowski, June 3, 2017

Molly Riley Reuters

On Friday, the Supreme Court rapidly expedited everything. The ACLU—which represents the plaintiffs—have been ordered to file their response by 3:00 p.m. on Monday, June 12. The ACLU lawyers must also respond to DOJ’s application for a stay by that time.

The Court could conceivably then vote immediately on whether to take the case, or anytime shortly thereafter. Under a normal briefing schedule, the Court would then hear arguments in October, and issue a decision by the end of 2017.

It’s also possible that the Court could accelerate briefing on an emergency basis, then hold arguments over the summer, or possibly even in June before recessing for the summer. The Court could make clear by the week of June 12 which course it is pursuing.


WASHINGTON, D.C.—The Supreme Court took the rare step on Friday of expediting consideration of a major case, rapidly accelerating the schedule for reviewing the Fourth Circuit’s blocking of President Donald Trump’s travel ban executive order.

President Trump issued Executive Order 13780 (EO) on March 6, Section 2(c) of which temporarily restricted travel from six Muslim-majority countries associated with terrorism while the United States developed new vetting procedures to keep the nation safe.

Immigration activists sued, along with several immigrants and their families. A liberal federal district judge in Maryland granted a preliminary injunction blocking Section 2(c) of the EO. The U.S. Court of Appeals for the Fourth Circuit then affirmed the trial court’s injunction in a 10-3 decision, ruling that the EO violated the Constitution’s Establishment Clause, and taking the almost unheard-of step of all the court’s judges hearing the case, instead of sending it to a three-judge panel.

The U.S. Department of Justice (DOJ) filed a petition for review at the Supreme Court on Thursday. Under the Court’s rules, a response from the plaintiffs would be due July 3. By that time the Court would be on recess for the summer, meaning that the justices would vote at the Court’s annual pre-Term conference, which will take place on September 25, on whether to take the case. That would typically mean hearing arguments in December or January, with a final decision coming down in early or mid-2018.

Acting Solicitor General Jeff Wall at DOJ also asked Chief Justice John Roberts (who supervises the Fourth Circuit) to stay the appellate court’s decision until the justices can decide the matter.

On Friday, the Supreme Court rapidly expedited everything. The ACLU—which represents the plaintiffs—have been ordered to file their response by 3:00 p.m. on Monday, June 12. The ACLU lawyers must also respond to DOJ’s application for a stay by that time.

The Court could conceivably then vote immediately on whether to take the case, or anytime shortly thereafter. Under a normal briefing schedule, the Court would then hear arguments in October, and issue a decision by the end of 2017.

It’s also possible that the Court could accelerate briefing on an emergency basis, then hold arguments over the summer, or possibly even in June before recessing for the summer. The Court could make clear by the week of June 12 which course it is pursuing.

The case is Trump v. International Refugee Assistance Project, No. 16-1436.

Clinton Operatives Brag They “Scared off” Chief Justice

October 15, 2016

Clinton Operatives Brag They “Scared off” Chief Justice, Power LineJohn Hinderaker, October 15, 2016

(The strategy seems to have worked. The Supreme Court’s 2012 Obamacare decision — written by Chief Justice Roberts — was worse than a farce, as I wrote here shortly after the decision was rendered. — DM)

In one of the more remarkable Wikileaks exchanges, Clinton operatives Neera Tanden and Jennifer Palmieri took credit for “scaring off” Chief Justice John Roberts by threatening to make the Supreme Court’s decision in the first Obamacare case, NFIB v. Sebelius, a campaign issue. These are the players on the email thread:

Center for American Progress (CAP): a left-wing activist organization that was an arm of the Obama administration and now is an arm of the Clinton campaign.

Neera Tanden: President of CAP.

John Podesta: Former President of CAP, now Hillary Clinton’s campaign chairman.

Jennifer Palmieri: Former White House Communications Director for Barack Obama, now communications director for the Hillary Clinton campaign.

Jake Sullivan: Hillary Clinton’s deputy chief of staff when she was Secretary of State, now foreign policy adviser to the Clinton campaign.

In the main email in the thread, Neera Tanden harkens back to the first Obamacare case, decided on a 5-4 vote in 2012, and says that she believes the White House “scared off” Chief Justice John Roberts by politicizing the case. She suggests that the Clinton campaign should do the same with regard to the then-pending second Obamacare case, King v. Burwell. She identifies Justices Roberts and Anthony Kennedy as most vulnerable to political pressure:

I mentioned this to John some time back, but think it’s a bit more current now.

It is most likely that this decision has already been made by the Court, but on the off chance that history is repeating itself, then it’s possible they are still deciding (last time, seems like Roberts went from striking the mandate to supporting it in the weeks before). As Jennifer will remember, it was pretty critical that the President threw the gauntlet down last time on the Court, warning them in the first case that it would politicize the role of the Court for them to rule against the ACA. As a close reader of the case, I honestly believe that was vital to scaring Roberts off.

In this case, I’m not arguing that Hillary spend a lot of time attacking the Court. I do think it would be very helpful to all of our interest in a decision affirming the law, for Roberts and perhaps Kennedy to see negative political consequences to ruling against the government. Therefore, I think it would be helpful to have a story of how progressives and Hillary would make the Supreme Court an election issue (which would be a ready argument for liberals) if the Court rules against the government. It’s not that you wish that happens. But that would be the necessary consequence of a negative decision…the Court itself would become a hugely important political issue.

At CAP Action, we can get that story started. But kinda rests on you guys to make it stick.

What do you think? If you want to proceed, we should move soon.

Tanden then added this in a separate email:

And to clarify, the candidate wouldn’t have to do anything. I think we could move the story with just a nod from the campaign on the strategy.

Note how CAP seamlessly coordinates with the Clinton campaign, taking directions on whether to “move the story” from campaign officials. Tanden makes no pretense of independence.

Jake Sullivan responded that he is “into it,” but would “defer to Jen on this one.” Palmieri gave the green light:

She has already been making this an issue. Not sure how in depth you are suggesting but seems like this should be manageable.

Of course, the liberals’ belief that Justices Roberts and Kennedy can be influenced by political pressure, and that such pressure was “pretty critical” to the decision upholding Obamacare’s constitutionality, could be wrong. Their conversation is, in any event, chilling.

Via InstaPundit and the Wall Street Journal.

Did Justice Ginsburg Just Violate Judicial Ethics in Her Criticism of Donald Trump?,

July 11, 2016

 Did Justice Ginsburg Just Violate Judicial Ethics in Her Criticism of Donald Trump?, Jonathan Turley’s Blog, July 11, 2016

(Reason #5,684 to vote for Trump: If he is elected Ginsburg may leave the country. — DM)


Ginsburg did violation judicial ethics but it doesn’t matter. For just nine jurists, judicial ethics remains a purely advisory set of rules that are often honored in the breach.


I have long been a critic of the Supreme Court justices engaging in public appearances where they hold forth on contemporary issues and even pending matters before the Court. I have been particularly critical of the late Justice Antonin Scalia and Associated Justice Ruth Bader Ginsburg who clearly relished appearances before ideologically supportive groups. I have called this trend the “rise of the celebrity justice.” Now, Justice Ginsburg has started another firestorm over public comments where she joked that she would move to New Zealand if Donald Trump is elected. Canon 5 of the judicial ethical rules expressly prohibits “make speeches for a political organization or candidate, or publicly endorse or oppose a candidate for public office.” The problem is that the Court has long maintained that ethical codes are not enforceable against its members as opposed to every other jurist in the country. This absurd position has continued because Congress has failed to act, something that I have previously criticized. Ginsburg’s statements this week reflects the continued sense of impunity enjoyed by justices who violate the core maxim that “no man shall be the judge of his own case.” The justices are the judges of their own ethical cases and they show vividly why that is a dangerous and corrupting power.

Ginsburg left no question as to her opposition to Donald Trump. She stated “I can’t imagine what this place would be — I can’t imagine what the country would be — with Donald Trump as our president. For the country, it could be four years. For the court, it could be — I don’t even want to contemplate that.” She then added a reference to something that her husband, Martin D. Ginsburg, said: “‘Now it’s time for us to move to New Zealand.”

The sense of impunity reflected in Ginsburg interview was equally evident in her criticism of the GOP for failing to act on President Obama’s nominee to the Court and her defense of Obama’s right to get things done in his final year. She also clearly endorsed the qualification of nominee Judge Merrick B. Garland.

In my view it was a reckless and highly unethical exchange for any jurist. It undermined the integrity of the Court and demonstrates the lunacy of a Court that maintains that justices must be their own judges of ethical misconduct. In the past, justices have dismissed ethical rules like they are pesky matters for lesser jurists. Various justices have ruled in cases where they have clear financial interests. Many justices have embraced the celebrity status by appearing before a type of ideological base where they throw red meat to ecstatic liberal or conservative groups. It has to end. Congress has to act.

So the answer to the question above is that Ginsburg did violation judicial ethics but it doesn’t matter. For just nine jurists, judicial ethics remains a purely advisory set of rules that are often honored in the breach.

Supreme Court blocks Obama immigration plan

June 23, 2016

Supreme Court blocks Obama immigration plan, Fox News, June 23, 2016


The Supreme Court on Thursday blocked President Obama’s immigration executive actions, in a tie decision that delivers a win to states challenging his plan to give a deportation reprieve to millions of illegal immigrants.

The justices’ one-sentence opinion on Thursday effectively kills the plan for the duration of Obama’s presidency.

The 4-4 tie vote sets no national precedent but leaves in place the ruling by the lower court. In this case, the federal appeals court in New Orleans said the Obama administration lacked the authority to shield up to 4 million immigrants from deportation and make them eligible for work permits without approval from Congress.

Texas led 26 Republican-dominated states in challenging the program Obama announced in November 2014. Congressional Republicans also backed the states’ lawsuit.

The case dealt with two separate Obama programs. One would allow undocumented immigrants who are parents of either U.S. citizens or legal permanent residents to live and work in the U.S. without the threat of deportation. The other would expand an existing program to protect from deportation a larger population of immigrants who were brought to the U.S. illegally as children.

The Associated Press contributed to this report.

Donald Trump Unveils Potential Supreme Court Justice Nominations

May 18, 2016

Donald Trump Unveils Potential Supreme Court Justice Nominations

By Alex Swoyer

18 May 2016 Washington, DC

Source: Donald Trump Unveils Potential Supreme Court Justice Nominations – Breitbart


Presumptive Republican nominee Donald Trump unveiled 11 potential nominations to the Supreme Court if he were to become President of the United States.

Some of the names to replace Justice Antonin Scalia, who passed away in February, according to the Associated Press are:

Steven Colloton of Iowa, Allison Eid of Colorado, Raymond Gruender of Missouri, Thomas Hardiman of Pennsylvania, Raymond Kethledge of Michigan, Joan Larsen of Michigan, Thomas Lee of Utah, William Pryor of Alabama, David Stras of Minnesota, Diane Sykes of Wisconsin and Don Willett of Texas.

Trump previously said he would release the list to ease any concerns from Republican voters that he wouldn’t nominate a conservative judge.

Will Trump’s Supreme Court List Finish Off #NeverTrump?

May 18, 2016

Will Trump’s Supreme Court List Finish Off #NeverTrump? PJ Media, Roger L. Simon, May 18, 2016

Donald Trump released his long-awaited list of possible Supreme Court nominees today.  All eleven are conservatives, most originally appointed to appellate courts by George W. Bush.  Compared to anyone Clinton or Sanders might conceivably appoint, they all could be regarded as “strict constructionist” in the Antonin Scalia mold.

One, Allison Eid of Colorado, clerked for the currently most conservative justice Clarence Thomas.  She was also speechwriter for William Bennett. Who knew Reagan’s Secretary of Education needed writers – he’s a distinguished author himself – but Eid is clearly no slouch.  Here’s Wikipedia’s description of the jurisprudence of another potential nominee,  Missouri’s Richard Gruender:

In Planned Parenthood Minnesota, North Dakota, South Dakota v. Rounds, No. 05-3093, a panel of the Eighth Circuit upheld an injunction that struck down a South Dakota informed consent law that required abortion providers to inform patients, among other things, that an “abortion will terminate the life of a whole, separate, unique, living human being.” Gruender dissented, arguing that the law was constitutional and did not unduly burden women seeking abortions or infringe on the freedom of speech of physicians. The Eighth Circuit heard the case en banc and ruled in 2008 by a vote of 7–4, in an opinion authored by Gruender, that the law was, on its face, constitutional.[10][11]

Diane Sykes and William Pryor, both also on the list, have been bandied about for some years as possible Republican SCOTUS nominees.

I could go on, but the point is this – Trump, thus far, has delivered as promised.  This list would build a Supreme Court that most, if not all, Republicans could more than live with for many years.  I know there will be hold-outs who will claim Trump is prevaricating and will end up nominating, say, Gloria Allred (not very likely, I think).  Or that he should have Ted Cruz on the list.  Who knows?  Over time that could change.

But I think I can confidently say the #NeverTrump movement just took a mortal blow.

Top Obama Lawyer Brings Anti-Israel Bias to High Court

November 9, 2014

Top Obama Lawyer Brings Anti-Israel Bias to High Court

November 7, 2014

by Joseph Klein

via Top Obama Lawyer Brings Anti-Israel Bias to High Court | FrontPage Magazine.




The Obama administration’s anti-Israel bias was on full display at the Supreme Court earlier this week. Its chief lawyer, Solicitor General Donald Verrilli, offered an incredibly insulting analogy while arguing a case involving whether a U.S. citizen born in Jerusalem has the right to require, upon request, that the State Department identify “Israel” as the place of birth on his or her passport. In defending the administration’s position that it has the inherent discretion to deny any such request if it believes that granting the request would undermine the president’s foreign policy objectives, Verrilli raised the bogeyman comparison to “issuing passports to people born in the Crimea tomorrow that identified Russia as the country of birth.” Verrilli said that to do so “would contradict the foreign policy position in a way that could be quite deleterious,” leaving the distinct impression that Israel’s relationship to Jerusalem should be analyzed the same way for the purposes of this case.

The case stemmed from an attempt by the parents of a boy born in Jerusalem, who is a U.S. citizen because both of his parents are U.S. citizens, to file an application for a consular report of birth abroad and a United States passport for their son, Menachem Binyamin, listing his place of birth as “Israel.” The parents were exercising a statutory right explicitly granted by Congress in the Foreign Relations Authorization Act, which still remains in effect and requires the State Department to record a Jerusalem-born U.S. citizen’s place of birth as “Israel” if requested to do so by the citizen or his or her legal guardian.

The State Department denied the parents’ request, despite the fact that their son was born in “West” Jerusalem, which even the Palestinian negotiators are not currently claiming belongs to them. The Palestinians insist that only “East” Jerusalem must become the capital of an independent Palestinian state, but the State Department’s rejection of the passport request thrusts the status of all parts of Jerusalem into the conflict, including the undisputed portion.

Verrilli argued to the Supreme Court that requiring the State Department to identify in a passport, an official government-issued document, Israel as the birthplace of a U.S. citizen, known by the government to have been born in Jerusalem, would impermissibly “interject an issue of recognition policy into the content of passports.” He added that “Congress cannot compel the Executive to issue diplomatic communications that contradict the official position of the United States on a matter of recognition,” in summing up the administration’s position. He also expressed concern about the impact that such implied recognition of Israel’s claims would have on the Palestinians, whom, he noted, declared, “Jerusalem the capital of the Palestinian state.”

Verrilli characterized the Obama administration’s role as “an honest broker who could stand apart from this conflict and help bring it to resolution.” He said that adhering to the Foreign Relations Authorization Act’s passport requirement would undermine this role and “the credibility of the President on this fundamental question of where the United States stands on the status of Jerusalem until the parties work it out.”

In other words, the Obama administration has come before the Supreme Court with self-righteous proclamations about the need to preserve the president’s credibility and even-handedness in his conduct of diplomacy on the Jerusalem issue in order to justify its utter disregard of a law on the books concerning the issuance of passports. True to form, the Obama administration is asserting unbridled executive power. Claiming that Congress cannot interfere with the president’s conduct of foreign diplomacy, the State Department decided to disregard an explicit provision in a congressional statute, which requires the State Department to record a Jerusalem-born U.S. citizen’s place of birth as “Israel” if requested to do so by the citizen or his or her legal guardian. The Foreign Relations Authorization Act’s Jerusalem provision granted no discretion to the executive branch in this regard.  The Act says: “For … a United States citizen born in the city of Jerusalem, the Secretary shall, upon the request of the citizen or the citizen’s legal guardian, record the place of birth as Israel.”

“Shall,” not “may,” is the operative word. Such legal technicalities do not faze the Obama administration, however. Its Solicitor General told the Supreme Court Justices that they “ought to defer to the Executive Branch’s judgment that the place of birth listing can have significant diplomatic consequences.” Justice Stephen Breyer agreed with this position because, as Justice Breyer so humbly put it, “I’m a judge. I’m not a foreign affairs expert.”

Justice Sotomayor, acting as if she were counsel for the Palestinians rather than a Supreme Court Justice, remarked that requiring the State Department to honor a Jerusalem-born U.S. citizen’s request to record his or her place of birth as “Israel” on an official government document would be tantamount to “asking the government to lie.” She reached that bizarre conclusion on the premise that the U.S. government would be identifying Jerusalem with Israel, contrary to the government’s official recognition policy.

The more conservative-leaning Justices expressed some skepticism regarding the argument that issuing the passport as requested would interfere with the president’s diplomatic powers to decide whether or not to recognize the sovereign claims of Israel to Jerusalem. Justice Scalia acknowledged that there could be a constitutional issue if the president’s recognition powers were being directly challenged by legislation, but he questioned whether that was the case here.

Justice Alito said that while he understood “the position of the United States that Israel does not exercise full sovereignty over Jerusalem,” he suspected there were certain attributes of sovereignty exercised by Israel such as Israel’s issuance of birth certificates for births within Jerusalem or Israel’s prosecution of crimes committed within Jerusalem which “the United States recognizes that Israel is lawfully exercising.”

Justice Kennedy proposed an idea he thought might alleviate the State Department’s concerns. He suggested that the State Department could simply include a statement with the passports it issues for Jewish American citizens born in Jerusalem that “This passport does not indicate that the government of the United States and the Secretary of State recognize that Israel has sovereign jurisdiction.”

Justices Kagan and Ginsburg expressed concern about the ramifications of appearing to take sides in the dispute between the Palestinians and Israel over Jerusalem’s status.

“I mean, history suggests that everything is a big deal with respect to the status of Jerusalem,” Justice Kagan said, pointing to the recent spate of violence in Jerusalem to support her point. “And right now Jerusalem is a tinderbox,” she added, “because of issues about the status of and access to a particularly holy site there. And so sort of everything matters, doesn’t it?”

With all due respect to Justice Kagan’s concerns about not setting off a “tinderbox,” what should matter is not to give the Palestinians a veto power over the implementation of a clear congressional statutory directive because of worries about a violent Palestinian reaction.

Justice Ginsburg questioned the fairness of the statute. “What about Palestinians who were born in Jerusalem and want to have Palestine as their place of birth?” she asked. “American born Palestinians cannot do that. And that suggests that Congress had a view, and the view was that Jerusalem was properly part of Israel.”

Horror of horrors that Congress should dare tilt in the direction of the one true democracy in the Middle East that has traditionally been our closest ally in the region!

In any case, President Obama has tipped the scale in precisely the opposite direction. Solicitor General Verrilli’s argument that the president’s ability to serve as an “honest broker” will be at risk if the Court rules against the State Department’s denial of the passport request rings hollow. Obama forfeited that role when he effectively endorsed the division of Jerusalem, based on Obama’s call for Israel to withdraw essentially to the pre-June 1967 lines as the basis for Palestinian-Israeli final status negotiations on the border between the two states. Obama’s map-drawing would mean that so-called “East” Jerusalem would become a part of a new Palestine state, codifying an artificial division that would reinstate the conditions prevailing during Jordan’s illegal occupation of the eastern portion of Jerusalem, including the Old City, between 1948 and 1967.

Prior to the Jordanians’ illegal occupation, Jerusalem was an undivided city. Historically, Jews have been living in Jerusalem continuously for more than three millennia. Jerusalem has never been the capital of any sovereign nation except of the Jewish people.

In more recent times, Jews have constituted the largest single group of inhabitants in Jerusalem since at least the mid-1800s. During the Jordanians’ illegal occupation between 1948 and 1967 of the eastern section, including the Old City, which Jordan annexed and ruled from its capital, Amman, Jewish homes and sacred places were destroyed or defaced. Jews were barred from worshipping at their holiest sites. The Palestinians today want to replicate this division and impose an ethnic and religious cleansing of any Jewish residents.

“In a final resolution, we would not see the presence of a single Israeli — civilian or soldier — on our lands,” Palestinian Authority President Abbas said last year.

When the Obama administration condemns Israel for planning to expand housing for Israeli Jews living in over-crowded Jewish neighborhoods within the portion of Jerusalem that Jordan had illegally occupied until Israel reunified the city, it is not neutral or acting as an “honest broker.” It is embracing the Palestinians’ bogus claims derived from Jordan’s illegal occupation.

Earlier this week, Abbas sent a letter to the family of the Palestinian jihadist killed by Israeli soldiers after he had seriously wounded Rabbi Glick, an American citizen, who was peacefully seeking more access for Jews to pray on the Temple Mount. Abbas called the would-be assassin “a martyr defending the rights of our people and the holy places.”

The Temple Mount is holy to Jews, as well as to Muslims. It includes but is not limited to the al-Aqsa Mosque. But Muslims, whom have been abusing the administrative responsibilities Israel granted to them in connection with the site,  insist on barring Jews from worshipping anywhere on the Temple Mount site. Defending “the holy places” means, according to Abbas, enforcing such discriminatory exclusion of Jews, whom he previously referred to as “cattle,” by “all means” necessary.

Palestinian violence has followed in the wake of Abbas’s incendiary rhetoric. But the Obama administration continues to side with the Palestinian position. When asked to comment last week on Glick’s shooting by a Palestinian jihadist, State Department Spokesperson Jen Psaki deplored the shooting but quickly pivoted to expressing the Obama Administration’s “support” for “the long-standing practices regarding non-Muslim visitors to the site, to Haram al-Sharif / Temple Mount.” Just by referring to the Temple Mount first by its Arabic name – even before its English designation – and omitting any reference to its Hebrew name Har haBáyit (or Har haMoria), the State Department spokesperson displayed the Obama administration’s pro-Palestinian bias.

In what should have been a prosaic explanation to the Supreme Court of the Obama administration’s position on the relevant law, its Solicitor General exposed the true animus that the Obama administration has towards the Jewish state of Israel. Solicitor General Verrilli’s reference to Russia and Crimea in an oral argument dealing with the issuance of a passport listing Israel as the place of birth for an American citizen born in Jerusalem was a contemptible distraction intended to place Israel in an unfavorable light in front of the highest court of the land.

It is always difficult to ascertain which way the Supreme Court will rule in a controversial case from the comments made by the various Justices during oral argument. However, what could emerge is a narrowly written majority opinion that sidesteps the constitutional question of separation of powers. The State Department can honor the Jerusalem-born American citizen’s request in accordance with the statute, based simply on the uncontested fact that it was Israel which issued the official birth certificate in the first place upon which the issuers of the passport relied for information. As Justice Kennedy, often a swing vote on the Court, suggested, the administrative action of issuing the passport with such birth information can be accompanied by a clear disclaimer statement that issuing the passport in no way is meant to express the U.S. government’s diplomatic recognition of Israel’s sovereign claims to Jerusalem.

Whatever the outcome, Solicitor General Verrilli’s slanderous Russia-Crimea analogy will remain a shameful episode in the annals of Supreme Court oral arguments.