The "conservative" justices act like partisans because that is what they always have been. They are part of a long-standing right-wing plan to use the judiciary as an end-run around democracy to enact their preferred policies, which they can't achieve through elections.

The Supreme Court's reputation is shattered thanks to its conservative justices https://www.lgbtqnation.com/2022/12/supreme-courts-reputation-shattered-thanks-conservative-justices/

#PartisanJudges
#PartisanCaptureOfJudiciary
#GOPVersionOfJustice
#JudicialEndRunAroundDemocracy

"...Just to show you where their loyalties lie, Alito, Kavanaugh, Amy Coney Barrett and Neil Gorsuch showed up at a gala dinner in November held by the Federalist Society, the right-wing legal group that vetted Trump’s judicial appointees, where they received a long ovation for their ruling overturning abortion rights.

Such disregard for the appearance of neutrality is possible because the Supreme Court doesn’t have any ethical guidelines – literally. Unlike any other judicial body in the U.S., the Court relies upon the integrity of the justices to police itself.

Look at where that’s gotten us.

No wonder the public’s trust in the Supreme Court is at historic lows. The conservative wing’s insistence on imposing its own view of society, even if that means overturning precedents, has made the Court seem like just another political player and not a group of legal giants. The attitude of Alito and company seems to be, “Who cares?” As long as they have the power, society can get lost.

As for the Court, it will take years to rebuild the reputation that the right’s disregard for basic ethics has destroyed. Meanwhile, you can count on the partying and praying to keep happening, despite the conflicts they may represent."

Part 2
Increasingly the GOP's goal in capturing the supreme court and the judiciary is becoming clear as they use the judiciary to end run around democracy, grab power and impose their partisan policy preferences without the voters consent. The GOP doesn't need democracy to steal power if they can use the unelected judiciary to control US policy.

Biden COVID response: 5th Circuit blocks vaccine mandate for federal contractors. https://slate.com/news-and-politics/2022/12/biden-vaccine-mandate-federal-contractors-fifth-circuit.html

#PartisanCaptureOfJudiciary
#JudicialPowerGrab
#JudicialEndRunAroundDemocracy
#GOPUsingJudiciarytoSkirtDemocracy
#PartisanJudges
#GOPHatesDemocracy
#GOPLovesPower

Judge James Graves dissented on the grounds that his colleagues erred in extending the major questions doctrine to presidential executive orders. Noting that the Procurement Act had frequently been used in social policymaking, Graves observed that Biden’s order was in line with the act’s first use in 1965: implementing anti-discrimination provisions forbidding contractors from discriminating on the basis of race, creed, color, national origin—a use which the 5th Circuit subsequently upheld. Graves also compared Biden’s order to a second prior Procurement Act case requiring federal contractors to electronically verify their employees were authorized to work in the U.S. Like the e-verify requirement, Graves asserted, Biden’s order requiring federal contractors to verify employees had COVID vaccinations did not govern employees’ conduct but merely imposed requirements on employers.

Finally, Graves observed that Biden’s executive order mirrored current “mainstream” policies of private employers requiring employee vaccinations, analogizing the mandate to other health measures like regulating smoking at federal workplaces. “Just like requiring vaccine mandates,” he wrote, “the reason to prohibit smoking while at a federal facility is to prevent dangerous disease from spreading, whether it be COVID or harms from secondhand smoke, which hampers the economy and efficiency of federal contractors’ operations.”

As Graves noted, the president “does not suffer from the same lack of political accountability that agencies may, particularly when the President acts on a question of economic and political significance.” Unlike a federal agency, the president is elected and therefore accountable to U.S. citizens—a core difference in whether it is appropriate to extend that major questions doctrine to presidential executive orders. Moreover, the 5th Circuit majority did not—and could not—cite to another case where the major questions doctrine had been extended to a presidential executive order. That federal courts had never ventured into this forbidding territory, Graves suggested, is tantamount to a default understanding that the doctrine simply does not extend to that context.

Graves is right. The 5th Circuit’s expansion of the major questions doctrine is unwarranted, unnecessary, and dangerous to democracy. Old doctrines can be used for new tricks—but we need to be very careful in such contexts, lest aggressive judicial incursions into executive policymaking powers undermine settled legal doctrine. The overextension of the major questions doctrine is also symptomatic of other recent attempts to shift power from the executive to the judicial branch. The 5th Circuit opinion was issued at a time when courts are making headlines by using settled doctrine in new ways, seemingly to impose ideological objectives; witness, for example, the rejection of stare decisis in the overturning of Roe v. Wade in June. These acts put courts—and the legal principles they interpret and enforce—on increasingly shaky ground, and threaten to undermine fragile public trust. We must remember that federal judges, like federal agencies, are also unelected. But unlike bureaucrats, judges serve for life.

It should make us uneasy when federal courts apply well-settled doctrine in novel contexts. As it is increasingly forced to explore territories unknown, U.S. law had best meander cautiously along, in the tradition of its pioneer forbears, cautiously guiding the judicial wagon and its precious cargo along well-worn grooves. Applying doctrines in radically different contexts can be irresponsible judicial activism—the equivalent of sending that wagon hurtling off a cliff, to the peril of all."

Part 1
Increasingly the GOP's goal in capturing the supreme court and the judiciary is becoming clear as they use the judiciary to end run around democracy, grab power and impose their partisan policy preferences without the voters consent. The GOP doesn't need democracy to steal power if they can use the unelected judiciary to control US policy.

Biden COVID response: 5th Circuit blocks vaccine mandate for federal contractors. https://slate.com/news-and-politics/2022/12/biden-vaccine-mandate-federal-contractors-fifth-circuit.html

#PartisanCaptureOfJudiciary
#JudicialPowerGrab
#JudicialEndRunAroundDemocracy
#GOPUsingJudiciarytoSkirtDemocracy
#PartisanJudges
#GOPHatesDemocracy
#GOPLovesPower

"On Monday, a three-judge panel of the U.S. Court of Appeals for the 5th Circuit ruled 2–1 that President Joe Biden lacked authority to issue an executive order imposing a requirement on companies with whom the U.S. government contracts that employees be vaccinated against COVID-19, affecting thousands of companies and up to 25 percent of the U.S. workforce.

Responding to the demands of Louisiana, Indiana, and Mississippi, the 5th Circuit kept in place a ban on the implementation of Biden’s executive order on the grounds that the president lacked authority to impose this requirement, and that the order violated an obscure-sounding administrative law principle: the major questions doctrine. Monday’s ruling, Louisiana v. Biden, has far-reaching consequences for federal contractors, but its legal substance also has stark and serious consequences for American law.

Federal agencies make and implement rules under authority that Congress has granted under statute. When a statute is ambiguous, courts have traditionally deferred to the agency’s interpretation of it, since agencies have much more expertise than federal judges. Courts used to invoke the major questions doctrine infrequently, as a narrow exception for extraordinary cases. But in recent years, federal courts’ invocations of this doctrine have vastly increased. They are increasingly unwilling to defer to agency interpretations on issues involving substantial “economic or political significance.”
...
But in Louisiana v. Biden, the 5th Circuit extended this doctrine to the president himself. The case involves an executive order that Biden issued in 2021 that would require the federal government to include a clause in contracts with companies requiring employees to be vaccinated against COVID-19.

The 5th Circuit’s expansion of the major questions doctrine is unwarranted, unnecessary, and dangerous to democracy.
The Justice Department argued that Biden issued this order under his authority pursuant to the Presidential Procurement Act, in his role as the purchaser of services, to promote economy and efficiency. It also analogized this contracting requirement to the vaccine mandate imposed on most hospital workers—a rule that the Supreme Court upheld earlier this year.

Judge Kurt Engelhardt, joined by Judge Don Willett—both Donald Trump nominees—rejected these arguments in the majority opinion. Engelhardt reasoned that under the major questions doctrine, Congress had not clearly authorized Biden’s vaccine mandate. Although the major questions doctrine had never been extended beyond the agency context to encompass presidential policymaking under executive orders, the majority defended this novel application for two reasons: First, the Supreme Court had never explicitly limited the major questions doctrine to agencies rather than the president; and second, the president is responsible for the executive branch’s actions under Article II of the U.S. Constitution, suggesting that delegations to agencies and the president should be treated the same. Engelhardt also stated that implementing Biden’s order would set precedent penetrating beyond the contractor workplace into the realm of private health, affecting employee behavior...."

Part 2: This is all part of the wealthy/corporate plot to control the government so they can't be restrained, regulated, fined, taxed, etc.. Oh, and they definitely want their serfs back!!

'Judicial supremacy': How the Supreme Court usurped the other two branches of government - Alternet.org https://www.alternet.org/judicial-supremacy-supreme-court-usurped/

#PartisanCaptureOfJudiciary
#PartisanSupremeCourt
#PartisanJudges
#WantTheirSerfsBack

"Another current Supreme Court case that worries Wehle is Moore v. Harper, which deals with partisan gerrymandering in North Carolina and a far-right legal idea known as the independent state legislature (ISL) theory. The ISL, in its most severe form, argues that only state legislatures have a right govern elections at the state level — not governors, not state supreme courts, not judges.

“The implications of Moore are even graver than those in Milligan,” Wehle warns. “The legislators are arguing that under the U.S. Constitution, only state legislatures or Congress can decide the rules governing federal elections — state courts and state constitutions are meaningless. This independent state legislature theory was repeatedly raised with no success by Trump and his supporters seeking to overturn the election in 2020.”

Wehle continues, “But what was unthinkable then — a ruling that takes elections away from voters by mandating as a matter of constitutional law that state legislatures have unfettered power to ultimately decide them — is very real now…. If the independent state legislature theory nonetheless carries the day, it would mean that a state legislature could violate the very state constitution that created it. Voters would, once again, be the losers at the Supreme Court — despite multiple laws designed to protect them.”

Wehle wraps up her article by arguing that today’s Supreme Court is more radical than conservative.

“Alas, the conservative justices on this Court have already shown their hand,” Wehle writes. “They don’t care about precedent, let alone intellectual integrity. As a result, Americans may be in for a rude awakening. Indeed, perhaps it’s time to retire the label ‘conservative’ when referring to the majority of this Court. Each term gives further evidence of its decidedly unconstrained unconservatism. And the future of our precious Constitution is in their hands.”"

Part 1 This is all part of the wealthy/corporate plot to control the government so they can't be restrained, regulated, fined, taxed, etc.. Oh, and they definitely want their serfs back!!

'Judicial supremacy': How the Supreme Court usurped the other two branches of government - Alternet.org https://www.alternet.org/judicial-supremacy-supreme-court-usurped/

#PartisanCaptureOfJudiciary
#PartisanSupremeCourt
#PartisanJudges
#WantTheirSerfsBack

"In 2023, there will be a lot of gridlock in Washington, D.C., with Republicans having a small majority in the U.S. House of Representatives while Democrats will still control the White House and the U.S. Senate. Democrats performed much better than expected in the 2022 midterms, losing the House but slightly increasing their narrow majority in the Senate and winning key gubernatorial races in Pennsylvania, Michigan, Arizona and other swing states.

But even if the United States had taken a hard-left turn in 2020 and 2022 — even if Sen. Bernie Sanders of Vermont were president and Democrats had large majorities in both branches of Congress going in 2023 — the country would still have its most radical-right Supreme Court in generations. And the High Court won’t be moving to the center, let alone the left, anyone soon. It’s entirely possible that all three of the Gen-X justices President Donald Trump appointed (Amy Coney Barrett, Brett Kavanaugh and Neil Gorsuch) will still be on the Court 30 years from now.

The Court’s far-right turn is the focus of articles published by the New York Times and the conservative website The Bulwark on December 19. In the Times piece, journalist Adam Liptak emphasizes that today’s Supreme Court wields more power than other branches of the federal government.

“The conventional critique of the Supreme Court these days is that it has lurched to the right and is out of step with the public on many issues,” Liptak explains. “That is true so far as it goes. But a burst of recent legal scholarship makes a deeper point, saying the current Court is distinctive in a different way: It has rapidly been accumulating power at the expense of every other part of the government.”

Liptak notes what Stanford University law professor Mark A. Lemley had to say about the High Court in an article published by the Harvard Law Review on November 20.

Lemley wrote, “The Court has not been favoring one branch of government over another, or favoring states over the federal government, or the rights of people over governments. Rather, it is withdrawing power from all of them at once…. It is a Court that is consolidating its power, systematically undercutting any branch of government, federal or state, that might threaten that power, while at the same time undercutting individual rights.”

Lemley’s article was headlined “The Imperial Supreme Court” — a characterization that Liptak doesn’t disagree with. And Liptak points out that according to Rebecca L. Brown and Lee Epstein of the University of Southern California (USC), the High Court “is establishing a position of judicial supremacy over the president and Congress.”

Liptak also quotes University of California, Berkeley law professor Tejas N. Narechania, who wrote, “The Roberts Court, more than any other Court in history, uses its docket-setting discretion to select cases that allow it to revisit and overrule precedent.”

In an article she wrote for The Bulwark, University of Baltimore law professor Kimberly Wehle stresses that the Roberts Court has been showing a total disregard for precedent. Discussing the case Merrill v. Milligan, Wehle points out that how the Court ruled in the past isn’t a major concern for this edition of the Court.

“After the Dobbs ruling overturning Roe v. Wade last term,” Wehle writes, “it’s clear that the Court’s majority is not shy about overturning precedent, however entrenched it may be…. At issue in Merrill, which was argued on October 4, is whether Alabama’s newly redrawn congressional map illegally discriminates against Black voters under the Voting Rights Act (VRA). A three-judge lower-court panel, including two Trump appointees, agreed with the plaintiffs, deeming the Alabama map illegal and mandating the creation of a new one. If the Supreme Court sides with Alabama, it would mean another reversal of established precedent interpreting Section 2 of the VRA in a 1986 case called Thornburg v. Gingles. Even worse, it would be another serious gut-punch to Congress’ ability to pass laws remedying systemic discrimination, this time in voting.”

Her initial ruling was a perfect example of how the GOP wants to use the judiciary to enact partisan policies and outcomes. They couldn't care less about the law or democracy, they only want control and things their way.

Article: Judge Aileen Cannon Dismisses Trump v. United States Case
Judge Aileen Cannon Dismisses Trump v. United States Case

https://www.thedailybeast.com/judge-aileen-cannon-dismisses-trump-v-united-states-case

#PartisanJudges
#PartisanCaptureOfJudiciary
#PartisanUnqualifiedJudges
#MitchsJudiciary

Former President Donald Trump’s clumsy attempt to halt the FBI investigation into the way he hoarded classified documents at Mar-a-Lago has reached its inevitable end, crashing in flames and taking with it the reputation of a young and inexperienced federal judge he appointed in his final days at the White House.

On Monday morning, U.S. District Judge Aileen M. Cannon followed orders handed down from a federal appellate court and dismissed the lawsuit in its entirety.

The case, which only lasted a little over three months, was remarkable in the way it showed how this South Florida federal judge entertained the former president’s novel legal theories—all in the service of attempting to slow down a potential criminal indictment that threatens his return to power.

From her private chambers in Fort Pierce, Florida, Cannon dismissed the case by acknowledging she lacked jurisdiction to ever entertain it.

The one-page order and its extremely brief explanation, “dismissed for lack of jurisdiction,” completely unraveled the 24-page screed she issued in September—one that shocked the legal profession because of the unprecedented way she justified inserting herself into an ongoing Department of Justice investigation"

Freedom of religion for me but not thee. These crazy, rightwing judges and other partisans, want to be able to impose their religious dictates on the rest of us and they have come a long way toward making that happen already. Lets see what they do about this case, but it doesn't look good so far. Alito and Gorsuch are foot-soldiers for the reactionary, right wing catholic arm of the Christian nationalist movement.

'Venom': Experts shocked as Gorsuch accuses Colorado of forcing anti-LGBTQ baker into 're-education program'

https://www.alternet.org/gorsuch-2658835299/

#PartisanCaptureOfJudiciary
#PartisanJudges
#ChristianNationalism
#RightWingCatholicCabal

"Justice Gorsuch instead called it a “re-education program,” and slammed the state’s Solicitor General, Eric Olson, with it on Monday.

“Mr. Phillips did go through a re-education training program, pursuant to Colorado law, did he not, Mr. Olson?” Gorsuch asked the solicitor general.

“He went through a process that ensured he was familiar –” Olson responded, before Gorsuch cut him off.

“It was a re-education program, right?” the justice blared.

“It was not a ‘re-education program,'” Olson replied, holding his ground.

“What do you call it?” Gorsuch, dissatisfied, pressed.

“It was a process to make sure he was familiar with Colorado law,” Olson explained.

“Some might be excused for calling that a ‘re-education program,’” Gorsuch snapped.

“I strongly disagree, Justice Gorsuch,” Olson said, defending the law.

Slate’s Mark Joseph Stern, who provided the clip above, warns: “It does not bode well for the future of civil rights law that Gorsuch believes a state imposes ‘reeducation training’ on employers when it reminds them how to comply with nondiscrimination rules.”

“Astounding that Gorsuch, A Supreme Court Justice,” tweeted Adam Cohen of Attorneys for Good Government, “Refers to Colorado giving courses on following civil rights law, As ‘reeducation training.'”

“Like being taught not to discriminate against LGBTQ is the same as being sent to a gulag for protesting communism in the Soviet Union,” he added.

Professor Elizabeth Sepper of the University of Texas at Austin School of Law says, “Justice Gorsuch describes education about antidiscrimination law and compliance as a REEDUCATION PROGRAM. This is beyond offensive. It was a central and SOFT tool of many civil rights movements and was essential to targeting market discrimination.”

Columbia Law School’s Elizabeth Reiner Platt, the Director of The Law, Rights, and Religion Project responded, “OMG Gorsuch repeatedly insists that a training on civil rights law is a ‘reeducation program.’ Good grief.”

Attorney Andrew L. Seidel, Vice President of Strategic Communications for Americans United for Separation of Church and State tweeted, “WHOA. Gorsuch asks a very hostile question about sending the bakery to ‘a re-education program.’ He spits the phrase with venom and repeats it several times. He’s regurgitating right wing talking points.”"

How The Midterm Elections Unleashed The Supreme Court's Radical Majority - National Memo https://www.nationalmemo.com/how-the-midterm-elections-unleashed-the-supreme-court-s-radical-majority
#PartisanJudges
#PartisanSupremeCourt
#GOPPartisansCaptureJudiciary

"So forget what you learned in civics about checks and balances. The midterm election did work out better for Democrats than the polls predicted, but for the next two years the power over major issues of national consequence will rest with a conservative majority on the Court that is unchecked itself and bent on reducing other checks on arbitrary power. At least with their decision to overturn Roe, the Court’s majority awakened the public to the danger. But, except for a possible reversal of Obergefell, it will be harder to arouse that kind of response to many of the other critical turns to the right the Court may take. This is going to be a major challenge for both journalism and Democratic politics in the coming years."

"Otherwise, the courts aren’t acting as courts; they’re just taking sides in policy debates that no one elected them to resolve."

Opinion: The judge blocking student loan relief for millions is wrong about the law | CNN https://www.cnn.com/2022/11/12/opinions/student-loan-relief-program-judge-vladeck
#RightWingJudges
#PartisanJudges
#PartisanCaptureOfJudiciary

"If the complaint is just that the government is acting unlawfully in a way that doesn’t affect plaintiffs personally, that’s a matter to be resolved through the political process – not a judicial one. As Justice Antonin Scalia put it 30 years ago, “vindicating the public interest (including the public interest in Government observance of the Constitution and laws) is the function of Congress and the Chief Executive.”

That’s why, until Thursday, each court to rule on a lawsuit challenging the Biden student loan debt relief program had dismissed the suit for lack of standing, like the St. Louis-based federal district court in a suit brought by six red states. Whether the plaintiffs were taxpayers or states, the problem was the same: Like it or hate it, when the government hands out a benefit to a class of individuals, that doesn’t usually injure other individuals discretely.

Instead, objections to the Biden program present the classic kind of “generalized grievance” that the Supreme Court has long held federal courts lack the constitutional authority to resolve – like when a taxpayer tried to sue the CIA in an attempt to force the agency to provide a public accounting of its (allegedly unlawful) expenditures.

Against that backdrop, Judge Pittman’s holding that the two plaintiffs in his case had standing just doesn’t hold up. For both of them – Myra Brown and Alexander Taylor – Pittman tied their standing to the fact that they are partly or fully ineligible for the program. The injury they suffered, in Pittman’s view, is that they were unable to argue for more expansive eligibility criteria that would’ve included them – not that the program itself is unlawful. That reasoning, such as it is, is especially ironic for two reasons.

First, Pittman recognized later in the same opinion that the Biden administration didn’t need to provide Brown and Taylor with an opportunity to argue for expanded eligibility criteria – because the law the program is based on is exempt from the administrative law requirement known as “notice-and-comment rulemaking.” So they had standing based on an injury Pittman held … didn’t exist.

Second, the rest of Pittman’s analysis – that there was no means by which the Biden administration could have expanded the eligibility criteria, since the program itself is, in his view, unlawful – makes it impossible for Brown or Taylor to show how their injuries could have been redressed by the courts. Indeed, Pittman’s ruling blocking the program on a nationwide basis provides Brown and Taylor with precisely … nothing.

The Biden administration has already announced its intent to appeal Pittman’s ruling to the ultra-conservative US Court of Appeals for the Fifth Circuit, and it’s likely that whoever loses there will take the matter to the Supreme Court. So Pittman is unlikely to have the last word. But it’s still worth taking a step back and reflecting on the lengths to which Pittman went to find standing in a context in which every other court to date has held it doesn’t exist.

Part of what Pittman might be chafing against is the idea that the federal government could take any action that might be immune to judicial review (during one hearing in the case, he compared Congress’ delegation of authority to the executive branch under the relevant statute to the infamous 1933 Enabling Act in Germany). But the federal government takes actions courts can’t review. Indeed, it’s the conservatives on the Supreme Court who have spent much of the past 40 years tightening the requirements for standing – and making it harder for plaintiffs to challenge allegedly wrongful government action. Reasonable minds can dispute – and have disputed – those precedents, but they’ve become the foundation of contemporary federal courts doctrine.

In that respect, Pittman’s ruling, and the public discourse surrounding the student loan debt relief program more generally, is also a helpful reminder that not every policy dispute should lead to litigation – and that it’s not the job of the courts to resolve every contentious issue in American politics.

For if Justice Alito was right that “no principle is more fundamental to the judiciary’s proper role in our system of government” than the idea that courts can only decide cases that present actual, justiciable controversies between adverse parties, then that principle ought to prevail even against the most strenuous (if not well-taken) objections to the government policy being challenged. Otherwise, the courts aren’t acting as courts; they’re just taking sides in policy debates that no one elected them to resolve."

Yet another analysis that points to how partisan this judge is being and how contrived his ruling is. What's the point of capturing partisan control of the judiciary, if you can't use it to impose your will on the government and country?

Opinion: The judge blocking student loan relief for millions is wrong about the law | CNN https://www.cnn.com/2022/11/12/opinions/student-loan-relief-program-judge-vladeck
#RightWingJudges
#PartisanJudges
#PartisanCaptureOfJudiciary

Editor’s Note: Steve Vladeck is a CNN legal analyst and a professor at the University of Texas School of Law. He is the author of the upcoming book “The Shadow Docket: How the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Republic.” The opinions expressed in this commentary are his own. View more opinion at CNN.

"The legal battles over President Joe Biden’s student loan debt relief program heated up on Thursday, when the Fort Worth, Texas-based Judge Mark Pittman, a Trump appointee, struck down the program and issued a nationwide injunction purporting to block it across the country.

Biden’s program aims to provide eligible low- and middle-income borrowers $10,000 in federal student loan forgiveness – or up to $20,000 if they also received a Pell grant while in college. Before the program was put on hold, it had already received 26 million applications.

But for Pittman, the central problem with the program is that its sheer economic size required clearer authorization from Congress than that provided by the 2003 statute on which the executive branch is relying. Invoking the Supreme Court’s new and deeply contested “major questions doctrine,” Pittman’s ruling would, if left intact, make it impossible for the program to be rescued without Congress stepping in.

But the biggest problem with Pittman’s ruling isn’t its substance; it’s why he allowed the case to be brought in the first place. Every other challenge to the Biden program that’s been brought thus far (and there have been a bunch) have been thrown out by trial courts for lack of standing – the term courts use as a shorthand for whether the dispute before them is the kind of controversy over which the Constitution allows them to exercise judicial power.

In a nutshell, a case’s standing has three elements: That the plaintiff shows an “injury in fact”; that the injury is “fairly traceable” to the defendant’s allegedly wrongful conduct; and that the courts are able to provide at least some redress for their injuries.

Although standing is a technical doctrine, it’s also an important one. As Justice Samuel Alito wrote in a 2007 opinion, “No principle is more fundamental to the judiciary’s proper role in our system of government.”

Basically, the idea is that it’s not the federal courts’ job to answer hypothetical questions or resolve policy disputes. Only if a party can show how they’ve been harmed by the challenged policy in a manner that is concrete and particularized – real and discrete – will they (usually) be allowed to challenge it."

Excellent analysis of the absurd lengths some of these Trump and other right-wing judges will go to in order to get their partisan way!!! Not real judges at all, just partisans in robes!!

A Constitutional Republic Demands a Constrained Judiciary: | Laurence H. Tribe https://verdict.justia.com/2022/11/14/a-constitutional-republic-demands-a-constrained-judiciary
#RightWingJudges
#PartisanJudges
#PartisanCaptureOfJudiciary

"It’s legally irrelevant but socially explanatory that the suit, nominally on behalf of Myra Brown and Alexander Taylor, was actually brought by the Job Creators Network Foundation (“JCN”), whose website attacks the loan forgiveness program as “Biden’s bailout”; says it would “accelerate inflation at the worst possible time” even according to what the website calls “Democrat economists”; complains that the colleges attended by the students being “bailed out” charge too much and teach too little while they overpay their “army of administrators” and use the tuition they collect to construct “resort style amenities”; and ends with a conveniently located “HELP BLOCK THE BAILOUT” box that, when clicked, leads directly to a request for a financial contribution to help fund the attack on “government policies . . . getting in the way of the economic freedom that helped make this country prosperous.”

Even assuming a judge agrees with every word of that policy critique, what kind of judge joins that crusade and protests too much by insisting that his personal dislike of the program and of the administration that launched it are of course beside the point?

An Article III judge with integrity should decline the invitation to become an agent in that or any other ideological crusade on the simple basis that judges have been given no constitutional power to play such a role but only the more modest power to resolve actual “cases or controversies” involving the legally cognizable interests of particular parties.

Judges worthy of the robe and, more to the point, of a lifetime appointment to a position of great but constrained power, would decline the invitation. They would do so not because they think there’s something wrong with what some people call “cause” litigation; liberals no less than conservatives often bring cases as part of a political strategy to achieve policy goals and are often driven by overarching ideological agendas when they find genuinely injured plaintiffs who are willing to sign up for the ride through the judicial system not just to remedy their own injuries but to help others achieve broad social and moral objectives. That’s par for the course in a nation awash in lawyers and prone from the beginning, as Alexis de Tocqueville rightly observed, to make most of their biggest disagreements into lawsuits.

But using plaintiffs whose only “injuries,” if any, take the form of not being among the beneficiaries of the very programs they’re asked to help bring down in their entirety takes “cause” litigation to a new level entirely. The technical legal term, I think, is “chutzpah.” That’s what it takes to come into court and say, “Help me, Your Honor, I’m hurting because the agency I’m suing failed to do more of what I claim it had no right to do in the first place.” I’m not asking you to make the agency treat me more favorably; I’m asking you to stop it in its tracks so it doesn’t do for anyone what I say I wish it had done for me.” A lawsuit seeking only schadenfreude as judicial relief.

In the name of limiting government bodies to the powers assigned to them in our system of separated powers, the court is being asked to exercise a power bearing no resemblance to the “judicial power of the United States” as described in Article III and elaborated in over two centuries of judicial decisions.

More is at stake here than the Biden loan forgiveness program, important though that program is. What’s at stake is confining federal judges to their constitutionally limited role of resolving cases and controversies, something I have to hope even the most conservative appellate judges— ultimately including a majority of those on the Supreme Court—will insist on doing. At a time when constitutional democracy and the rule of law undergirding it remain frighteningly vulnerable despite the sigh of relief some (including me) exhaled when the midterm elections ended, little could matter more."

Excellent analysis of the absurd lengths some of these Trump and other right-wing judges will go to in order to get their partisan way!!! Not real judges at all, just partisans in robes!!

A Constitutional Republic Demands a Constrained Judiciary: | Laurence H. Tribe https://verdict.justia.com/2022/11/14/a-constitutional-republic-demands-a-constrained-judiciary
#RightWingJudges
#PartisanJudges
#PartisanCaptureOfJudiciary

"In the end, the decisive question to which Judge Pittman offered no satisfactory answer was this: What business did he have even opining on, much less ripping out root and branch, a federal debt relief program at the behest of two individuals whose entire grievance—apart from not having been given the opportunity to air that grievance before the ink on the program had dried, an opportunity to which the district court rightly held they weren’t entitled—was that the program they sought to topple in its entirety wasn’t large enough to encompass them?

If these plaintiffs can get the Biden administration’s student debt forgiveness program canceled simply because it didn’t include them, why can’t anyone seeking any kind of debt relief not covered by the program get it dismantled as beyond the authority delegated by Congress?

This wasn’t after all, a case in which the injury of which plaintiffs complained was a denial of the law’s equal protection—the kind of injury that can be redressed either by leveling up and extending greater protection to the plaintiffs or by leveling down and extending less to others. In this case, there is no basis in law for those who borrowed from private lenders or those who otherwise failed to qualify for the program’s full $20,000 in debt relief to make a federal case out of the mere fact that they fared worse in the government’s distribution of its largesse than some others did.

Why, then, did Judge Pittman rule as he did? There is a simple and sad answer: Because he could. It’s reminiscent of what the three dissenting Justices in the Dobbs case said about Justice Alito’s five-Justice majority opinion overruling Roe v. Wade: They did it because they had the votes.

I don’t mean by any stretch to compare the harm done by Judge Pittman’s exercise of naked power to the harm wrought by the Dobbs decision and its repudiation of rights on which generations of Americans had come to depend.

But there’s an important respect in which decisions like Dobbs, which I have criticized elsewhere—and the broader trend towards realpolitik and reactionary rejection of precedent to serve ideological ends—undoubtedly has given permission to judges like Mark Pittman to take their judicial roles far less seriously than they should. Not to mince words: he delivered a brazenly results-driven decision against the administration’s loan forgiveness program at the behest of a couple of named plaintiffs whose only excuse for letting those seeking to end the program use them as plaintiffs is that it failed to include them. You needn’t know the whole story of the Trojan horse to recognize one when you see it.

This necessarily leads one to suspect that the real point of the lawsuit filed in the Northern District of Texas wasn’t to obtain relief from some injury—even the “injury” of feeling envy—that the plaintiffs personally suffered at the hands of the government, but instead to supply warm bodies for a crusade against the government’s policies, a crusade everyone knows has been having difficulty identifying plaintiffs to spearhead its attempt to enlist the federal judiciary in the cause."

Excellent analysis of the absurd lengths some of these Trump and other right-wing judges will go to in order to get their partisan way!!! Not real judges at all, just partisans in robes!!

A Constitutional Republic Demands a Constrained Judiciary: | Laurence H. Tribe https://verdict.justia.com/2022/11/14/a-constitutional-republic-demands-a-constrained-judiciary
#RightWingJudges
#PartisanJudges
#PartisanCaptureOfJudiciary

"But if it was the HEROES Act that failed to accord the plaintiffs the right to argue for a more generous program of student debt relief, what if that Act itself was unconstitutional? No such claim has ever been made, none was made in this case, and none could ever succeed. There’s nothing even arguably unconstitutional about that Act.

All that remained was a possible claim that, although the plaintiffs had been denied nothing by way of process to which they could claim any entitlement, and although the law that made that fact crystal clear was perfectly constitutional, perhaps neither that law nor any other gave the Department of Education the statutory authority to forgive student debt at all?

After all, nobody claimed that President Biden, or the Executive Branch he heads, has inherent presidential power to forgive debts owed to the United States, a kind of fiscal parallel to the “pardon power” that Article II, Section 2, expressly confers on the President to “Grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.” That’s a power unpleasantly familiar to most of us after the one-term presidency of Donald J. Trump, but has no relevance in this situation—where the power of the purse is implicated and where all agree that, because Congress alone wields that awesome power under Article I, Section 8, Clause 1 of the Constitution, an agency providing relief from debt owed to the United States Treasury can do so only where a federal statute so authorizes.

But the argument that DOE was acting beyond its statutory authority here is, on the face of it, quite a stretch. The text of the HEROES Act expressly authorized relief from student indebtedness triggered by the presidential declaration of a Covid-related emergency—a declaration that then-President Trump had made in March 2020 and that President Biden has not rescinded. The only arguments Judge Pittman could muster to overcome that express authority were the rather lame legalism that the Act spoke only of power to “waive or modify” loans and didn’t use the words “loan forgiveness” as such; a legally irrelevant aside that the “COVID-19 pandemic was declared a national emergency almost three years ago and declared . . . by the President as ‘over’” in remarks during a television interview aired ”weeks before the [DOE] program” was officially launched; and the observation that the Education Department’s reliance on a “rarely invoked statutory provision” warranted enough “skepticism” to justify finding it beyond the agency’s delegated power in light of this past June’s Supreme Court decision in West Virginia v. Environmental Protection Authority, requiring that some delegations—those raising “major questions”—must be not only clear but clairvoyant, specific enough to spell out in advance the precise program an agency has put in place pursuant to the law Congress enacted.

Explaining why, in my view, the delegation of loan forgiveness authority to DOE is not in fact subject to the special requirements of that Supreme Court ruling and why, even if it were subject to them, it would meet them, is beyond my aim in this brief comment.

At most—even if I were wrong in that view and Judge Pittman were right in his contrary conclusion about the legality of the plan—that would show only that some other court, in a case properly brought by those who actually have standing to challenge the loan forgiveness program because it injures them in a way that the judicial relief they seek can redress, might vindicate the rule of law by trimming the Education Department’s sails and putting the ball back in Congress’s court to legislate with greater specificity whatever debt relief it deems wise and just. But, as the Supreme Court has unanimously affirmed many times, however strong the merits of a claim, federal courts must always scrutinize and find jurisdiction before considering it."

Excellent analysis of the absurd lengths some of these Trump and other right-wing judges will go to in order to get their partisan way!!! Not real judges at all, just partisans in robes!!

A Constitutional Republic Demands a Constrained Judiciary: | Laurence H. Tribe https://verdict.justia.com/2022/11/14/a-constitutional-republic-demands-a-constrained-judiciary
#RightWingJudges
#PartisanJudges
#PartisanCaptureOfJudiciary

"Judge Pittman stepped completely outside this judicial role as constrained by the Supreme Court’s standing doctrine. He thereby not only injured the many lower-income and middle-income borrowers who have justifiably relied on the administration’s program of debt relief but also—and more importantly—further undermined the already frayed rule of law in the United States and contributed to the erosion of the indispensable role of the independent federal judiciary in preserving our constitutional republic.

To add insult to injury, Judge Pittman adorned his adventure in what conservatives used to decry as “legislating from the bench” by righteously insisting that he was just “interpreting the law” as a “mere machine”—an image of bloodless passivity that makes Chief Justice John Roberts’ description of a judge’s role as merely that of an umpire, calling balls and strikes, appear downright activist. Before demonstrating just how far from the judicial role Judge Pittman strayed, I can’t resist noting as well the self-righteousness of his peroration about how “fundamental” it is “to the survival of our Republic that our Constitution be preserved” and why that, in turn, requires us to remember that “in this country we are not ruled by an all-powerful executive with a pen and a phone” (a snide backhand at a comment by former President Barack Obama). One is tempted to ask: But are we to be ruled instead by an all-powerful judiciary with the same instruments but without even a president’s accountability to the electorate?

The failure of this lawsuit to meet the basic jurisdictional requirement that the plaintiffs have standing to seek the relief requested is beyond doubt. The sole complaint of these plaintiffs—one of whom, Myra Brown, was ineligible for $20,000 in loan forgiveness under the debt relief program she challenged because her student loans are all commercially held and the other of whom, Alexander Taylor, was ineligible for $10,000 of such loan forgiveness because he hadn’t received a Pell grant—was that they’d been unable, because of the procedure by which DOE promulgated the program, to argue for more generous eligibility criteria, criteria that might have forgiven $20,000 of student debt owed by each. But the sole relief these plaintiffs sought—a decree invalidating the entire debt forgiveness program and ordering that it be dismantled altogether—would do precisely nothing to achieve the more generous debt relief that they argued they should have been able to urge the DOE to provide. Rather than being lifted by their own bootstraps, these plaintiffs were tripped up by them. They adopted the plainly self-defeating position of pleading with the chief executive to be more generous with the treasury’s money, while simultaneously arguing that the executive had no authority to dip into the public coffers in the first place.

Were they perhaps entitled nonetheless to have DOE promulgate the program through a procedure that would’ve enabled them at least to make a pitch for more inclusive criteria of debt relief even if, in the end, their own argument defeated their claim to have DOE provide any such debt relief, however stingy? Any such argument would be unavailing in light of controlling Supreme Court precedent establishing that a merely procedural right does not suffice to establish Article III standing unless there is some concrete and redressable harm at the end of the process being sought. And it turns out that they had no right in any event to petition DOE for more generous relief under the very law they invoked, the Higher Education Relief Opportunities for Students Act of 2003 (“HEROES” Act), or, for that matter, any other source of federal law. So the procedural “injury” they used to pry open the courthouse door was one the court itself held to be illusory. The door led nowhere."

Excellent analysis of the absurd lengths some of these Trump and other right-wing judges will go to in order to get their partisan way!!! Not real judges at all, just partisans in robes!!

A Constitutional Republic Demands a Constrained Judiciary: | Laurence H. Tribe https://verdict.justia.com/2022/11/14/a-constitutional-republic-demands-a-constrained-judiciary
#RightWingJudges
#PartisanJudges
#PartisanCaptureOfJudiciary

"A federal district judge—Mark Pittman, a Trump appointee to the Northern District of Texas—has dashed the hopes and upended the plans of tens of millions of student loan borrowers nationwide who have either been approved, or were about to be approved, for debt relief under the Biden administration’s loan forgiveness program. That program was promulgated by the U.S. Department of Education pursuant to congressional legislation that I’ll discuss shortly.

Judge Pittman held the program null and void and ordered it dismantled. In so doing, he became the first federal judge to conclude that he had jurisdiction to review the program’s validity at the behest of those its opponents had recruited to challenge it. And he went much farther than the U.S. Court of Appeals for the Eighth Circuit had gone when it issued an emergency order temporarily directing the Department to stop processing loan discharges while it reviewed a federal district court’s decision that it lacked jurisdiction to consider the program’s legality. The district court had concluded that the plaintiffs, six Republican-led states, lacked “standing” to pursue their challenge to the program because they could not show that they were genuinely harmed by it. In contrast, Judge Pittman’s decree permanently “vacating” the program in its entirety left the administration no choice but to stop taking loan forgiveness applications altogether on its official website while the Justice Department filed an immediate appeal to the U.S. Court of Appeals for the Fifth Circuit.

I write this comment to demonstrate that, whatever the merits of the arguments that the Biden administration’s program was unlawful—arguments that I find unpersuasive and that, in any event, many (including me) have addressed elsewhere and will address further in due course—Judge Pittman clearly had no jurisdiction even to hear the merits of the plaintiffs’ claims, much less to dismantle the program. By doing so, he usurped the power of both Congress and the Executive Branch.

The central defining feature of the federal judicial power which flows from Article III of the Constitution is that the courts Congress establishes pursuant to that article may exercise only the power to resolve actual “Cases” and “Controversies.” This “cases and controversies” requirement, as explained by the Supreme Court from its inception, entails the fundamental limitation that the Article III “judicial power” is available only to redress concrete injuries suffered by those who invoke it. In the words of the late conservative Justice Antonin Scalia writing for the Court in a 1990 case, “much more than legal niceties are at stake” with these limits on federal court jurisdiction: they are an “essential ingredient of [the] separation and equilibration of powers.”

As the Supreme Court famously explained in Marbury v. Madison in 1803, it is only the historically grounded power to resolve concrete cases and controversies that gives a federal court—within the limits of adjudicating those disputes between parties with something concrete at stake—the extraordinary power to “say what the law is” and bind even the other branches of the federal government to its interpretation. And it is only that axiomatic structural constraint on the power of Article III judges, who wield their gavels for life without ever being held accountable to the people, that makes their unique power compatible with a constitutional republic whose core premise is that of self-government. That’s why Justice Samuel Alito was neither exaggerating nor voicing a remotely controversial view when he wrote in a 2007 case that “[n]o principle is more fundamental to the judiciary’s proper role in our system of government” than the proposition that, without a case brought by a party with standing to invoke its authority who seeks relief from the injury establishing such standing, a federal court is jurisdictionally powerless to proceed. Despite the technical sound of the term “standing,” the principle for which it stands isn’t a matter of legal etiquette or a finicky demand that all the i’s be dotted and the t’s crossed—but rather a basic matter of governmental power and its constitutional limits."