Thomas, Clerks, and Networks

 Abbie VanSickle and Steve Eder at NYT:

In the 32 years since Justice Thomas came through the fire of his confirmation hearings and onto the Supreme Court, he has assembled an army of influential acolytes unlike any other — a network of like-minded former clerks who have not only rallied to his defense but carried his idiosyncratic brand of conservative legal thinking out into the nation’s law schools, top law firms, the judiciary and the highest reaches of government.

The former clerks’ public defense of the justice was “unparalleled in the history of the court,” said Todd C. Peppers, a professor of public affairs at Roanoke College and the author of “Courtiers of the Marble Palace: The Rise and Influence of the Supreme Court Law Clerk.” “It’s frankly astonishing.”

For Justice Thomas, the letter came at a time of both trial and triumph. He had become the face of long-simmering questions about the high court’s ethical guidelines. But he was also at the height of his influence. The court’s senior justice, he had spent years on the losing side of cases, writing minority opinions grounded in his strict originalist interpretations of the Constitution. Now that former President Donald J. Trump had given the court a conservative supermajority, Justice Thomas was a guiding voice for a new judicial mainstream.

He was playing a long game, and his former clerks were among its most important players.

... 

Now the tides have turned, and at least 18 of those former clerks have served as state, federal or military judges, nearly three-quarters of them appointed by Mr. Trump to federal courts, where they have ruled on issues like voting rights and access to the abortion pill. Roughly 10 more served in Mr. Trump’s administration; nearly a dozen made his Supreme Court short lists. Former Thomas clerks have argued, and won, several of the most momentous Supreme Court cases of recent years.

The network also includes a number of “adopted clerks” who never worked for Justice Thomas but are invited to events and receive clerk communications. Among them are high-profile conservatives including Leonard Leo, the judicial kingmaker of the Federalist Society, Senator Mike Lee of Utah and Alex Azar, a Trump cabinet secretary.

The Dobbs Story

 Jodi Kantor and Adam Liptak at NYT:

At every stage of the Dobbs litigation, Justice Alito faced impediments: a case that initially looked inauspicious, reservations by two conservative justices and efforts by colleagues to pull off a compromise. Chief Justice John G. Roberts Jr., a conservative, along with the liberal Justice Stephen G. Breyer, worked to prevent or at least limit the outcome. Justice Breyer even considered trying to save Roe v. Wade — the 1973 ruling that established the right to abortion — by significantly eroding it.

To dismantle that decision, Justice Alito and others had to push hard, the records and interviews show. Some steps, like his apparent selective preview of the draft opinion, were time-honored ones. But in overturning Roe, the court set aside more than precedent: It tested the boundaries of how cases are decided.

Justice Ginsburg’s death hung over the process. For months, the court delayed announcing its decision to hear the case, creating the appearance of distance from her passing. The justices later allowed Mississippi to perform a bait-and-switch, widening what had been a narrower attempt to restrict abortion while she was alive into a full assault on Roe — the kind of move that has prompted dismissals of other cases.

The most glaring irregularity was the leak to Politico of Justice Alito’s draft. The identity and motive of the person who disclosed it remains unknown, but the effect of the breach is clear: It helped lock in the result, The Times found, undercutting Chief Justice Roberts and Justice Breyer’s quest to find a middle ground.

In the Dobbs case, the court “barreled over each of its normal procedural guardrails,” wrote Richard M. Re, a University of Virginia law professor and former Kavanaugh clerk on a federal appellate court, adding that “the court compromised its own deliberative process.”

Knowledge of SCOTUS

Charles Franklin at Polls and Votes:

The limits of public attention to the Court is vividly illustrated by awareness of the balance of justices nominated by Republican and by Democratic presidents. Nominations have been intensely contested for over a decade (arguably longer) and the three Trump appointments followed in the wake of Obama’s nominee being denied hearings or a vote in 2016 following Justice Scalia’s death. If a lot of politics has been “all about the judges”, much of the public hasn’t followed the story.

Despite a long standing Republican-appointed majority on the Court, and the current 6-3 majority, 30% of the public believes a majority of the justices were appointed by Democratic presidents. About 40% say a majority was “probably” appointed by Republican presidents, and just 30% say a majority was “definitely” appointed by Republican presidents.

...

More than 60% say they don’t have an opinion of Justice Alito. In November 2022 we asked respondents for their best guess as to which justice authored the Dobbs decision. A quarter correctly picked Alito, with another quarter picking Thomas, and a scattering among the other justices. This is a very difficult question for the general public, who do not as a rule rush to read opinions by their favorite justices. Perhaps it is impressive that as many as 1/4 got Alito right, and Thomas is not a bad guess, given his concurrence. Still, the point is most people don’t have specific information about individual justices even in the most visible decisions.

...

There is a reporting and messaging lesson here. A substantial share of the audience you are trying to reach is likely unaware of some facts you take for granted. It is important to expand awareness of those facts by making them part of your story, even if they seem “obvious.

Indictment of a Former President

 Trump is under indictment.  Austin Sarat:

The Constitution’s authors contemplated the arrest of a current or former president. At several points since the nation’s founding, our leaders have been called before the bar of justice.

Article I, Section 3 of the Constitution says that when a federal government official is impeached and removed from office, they “shall nevertheless be liable and subject to indictment, trial, judgment and punishment, according to law.”Tench Coxe Public domain via Wikimedia Commons

In his 1788 defense of this constitutional provision, Alexander Hamilton noted that, unlike the British king, for whom “there is no constitutional tribunal to which he is amenable, no punishment to which he can be subjected without involving the crisis of a national revolution,” a president once removed from office would “be liable to prosecution and punishment in the ordinary course of law.” Trump has been impeached twice but not removed from office.

As a scholar with expertise in legal history and criminal law, I believe the punishment our nation’s founders envisioned for government leaders removed from office would also apply to those who left office in other ways.

Tench Coxe, a Pennsylvania delegate to the Continental Congress from 1788 to 1789, echoed Hamilton. He explained that while the Constitution’s speech or debate clause permanently immunized members of Congress from liability for anything they might do or say as part of their official duties, the president “is not so much protected as that of a member of the House of Representatives, for he may be proceeded against like any other man in the ordinary course of law.”

In Coxe’s view, even a sitting president could be arrested, tried and punished for violating the law. Though Coxe didn’t say it explicitly, I’d argue that it follows that if presidents can be charged with a crime while in office, once out of office, they can be held responsible like anyone else.

Oath Breaker Gets 18 Years

 The Oath Keepers include current and former military and law enforcement personnel. They traffic in conspiracy theories and violence, including the Capitol insurrection.

Dan Berman and Hannah Rabinowitz at CNN:

Judge Amit Mehta on Thursday handed down an 18-year prison sentence for the leader of the Oath Keepers, Stewart Rhodes, for his efforts to overturn the 2020 election that ended with the violent attack on the US Capitol on January 6, 2021.
...

“I dare say, Mr. Rhodes – and I never have said this to anyone I have sentenced – you pose an ongoing threat and peril to our democracy and the fabric of this country,” Mehta said.

“I dare say we all now hold our collective breaths when an election is approaching. Will we have another January 6 again? That remains to be seen.”

The judge, refuting claims Rhodes made during a 20-minute rant earlier in the day, added: “You are not a political prisoner, Mr. Rhodes. That is not why you are here. It is not because of your beliefs. It is not because Joe Biden is the president right now.”

“I dare say, Mr. Rhodes – and I never have said this to anyone I have sentenced – you pose an ongoing threat and peril to our democracy and the fabric of this country,” Mehta said.

“I dare say we all now hold our collective breaths when an election is approaching. Will we have another January 6 again? That remains to be seen.”
...

The sentence is the first handed down in over a decade for seditious conspiracy and Mehta said he wanted to explain the offense to the public. He did not mince words.

“A seditious conspiracy, when you take those two concepts and put it together, is among the most serious crimes an American can commit. It is an offense against the government to use force. It is an offense against the people of our country,” the judge said.

“It is a series of acts in which you and others committed to use force, including potentially with weapons, against the government of the United States as it transitioned from one president to another. And what was the motive? You didn’t like the new guy.”
...

“Nothing has changed, Mr. Rhodes, nothing has changed. And the reality is as you sit here today and as we heard you speak, the moment you are released you will be prepared to take up arms against our government. And not because you are a political prisoner, not because of the 2020 election, because you think this is a valid way to address grievances.”
...

“It’s not simply a conspiracy theory or a false narrative about fraud. It’s about the Constitution,” Rhodes said, later shouting: “I am not able to drop that under my oath. I am not able to ignore the Constitution.”

The judge had none of that, and compared Rhodes’ comments to the heroism of police officers and others protecting the Capitol: “We want to talk about keeping oaths? There is nobody more emblematic of keeping their oaths, Mr. Rhodes.”

Indicting Political Leaders

Richard Pérez-Peña at NYT:

In just the past 15 years, Nicolas Sarkozy and Jacques Chirac of France, Park Geun-hye and Lee Myung-bak of South Korea and Silvio Berlusconi of Italy have all been prosecuted for corruption and found guilty. The list of those criminally charged also includes former democratically elected leaders of Argentina, Brazil, Pakistan, Peru, South Africa and Taiwan.

In the 1980s, Kakuei Tanaka, a former prime minister of Japan, was convicted. And Prime Minister Benjamin Netanyahu of Israel is currently on trial on corruption charges.

“It’s always a big deal when a former president or prime minister is indicted, but in most democracies, it is normal when they’re credibly accused of serious crimes,” said Steven Levitsky, a professor of government at Harvard who has written about dozens of countries’ transition to democracy. The United States, he said, has been an outlier in its reluctance to charge a former leader.

“Political systems have to handle it,” he added. “They have to. Because the alternative — saying some people are above the law — is much worse.”

The essence of authoritarianism is getting away with crime. That's why this indictment is so important

— Ruth Ben-Ghiat (@ruthbenghiat) March 31, 2023

The Supreme Court HIstorical Society and Interest Groups

Many posts have discussed the political uses of philanthropy.

 Jo Becker and Julie Tate at NYT:

The charity, the Supreme Court Historical Society, is ostensibly independent of the judicial branch of government, but in reality the two are inextricably intertwined. The charity’s stated mission is straightforward: to preserve the court’s history and educate the public about the court’s importance in American life. But over the years the society has also become a vehicle for those seeking access to nine of the most reclusive and powerful people in the nation. The justices attend the society’s annual black-tie dinner soirees, where they mingle with donors and thank them for their generosity, and serve as M.C.s to more regular society-sponsored lectures or re-enactments of famous cases.

The society has raised more than $23 million over the last two decades. Because of its nonprofit status, it does not have to publicly disclose its donors — and declined when asked to do so. But The New York Times was able to identify the sources behind more than $10.7 million raised since 2003, the first year for which relevant records were available.

At least $6.4 million — or 60 percent — came from corporations, special interest groups, or lawyers and firms that argued cases before the court, according to an analysis of archived historical society newsletters and publicly available records that detail grants given to the society by foundations. Of that, at least $4.7 million came from individuals or entities in years when they had a pending interest in a federal court case on appeal or at the high court, records show.

The donors include corporations like Chevron, which gave while embroiled in a 2021 Supreme Court case involving efforts by cities to hold the oil company accountable for its role in global warming. Veteran Supreme Court litigators gave while representing clients before the court that included Tyson Foods and the Ministry of Commerce of the People’s Republic of China.ER

Disqualifying an Insurrectionist

 From CREW:

A New Mexico judge ordered Otero County Commissioner Couy Griffin be removed from office, effective immediately, ruling that the attack on the Capitol was an insurrection and that Griffin’s participation in it disqualified him under Section 3 of the 14th Amendment. This decision marks the first time since 1869 that a court has disqualified a public official under Section 3, and the first time that any court has ruled the events of January 6, 2021 an insurrection.

Section 3 of the 14th Amendment, also known as the Disqualification Clause, bars any person from holding federal or state office who took an “oath…to support the Constitution of the United States” as an “officer of any State” and then “engaged in insurrection or rebellion” or gave “aid or comfort” to insurrectionists. Griffin, as an Otero County Commissioner since January 2019, took an oath to “support and uphold the Constitution and laws of the State of New Mexico, and the Constitution of the United States.”

“This is a historic win for accountability for the January 6th insurrection and the efforts to disrupt the peaceful transfer of power in the United States. Protecting American democracy means ensuring those who violate their oaths to the Constitution are held responsible,” said CREW President Noah Bookbinder. “This decision makes clear that any current or former public officials who took an oath to defend the U.S. Constitution and then participated in the January 6th insurrection can and will be removed and barred from government service for their actions.”

Under New Mexico law, any private citizen of the state may file a lawsuit to remove a disqualified county official from office. A group of New Mexico residents were represented in this case by Citizens for Responsibility and Ethics in Washington and the New Mexico-based law firms of Freedman Boyd Hollander and Goldberg P.A, Dodd Law Office, LLC, and the Law Office of Amber Fayerberg, LLC, as well as by Cohen Milstein Sellers & Toll PLLC.

“Judge Mathew’s decision is fully supported by the facts and the law and justice achieves a needed measure of accountability,” said Freedman Boyd Hollander and Goldberg P.A Partner Joe Goldberg.

“The Court’s findings that Mr. Griffin engaged in repeated efforts to mobilize a mob and incite them to violence on January 6, 2021 amply support the Court’s conclusion that he is unqualified under the Fourteenth Amendment to hold public office,” said Daniel Small of Cohen Milstein Sellers & Toll PLLC.

An eyewitness to Griffin’s behavior testified that Griffin also took on a leadership position within the mob at the Capitol on January 6th. Videos of Griffin’s speeches en route to Washington, DC for the “Stop the Steal“ rally showed Griffin’s willingness to stop, by any means necessary, a Biden presidency. In the days after the attack, Griffin continued to defend the insurrection, boasted about his involvement, and suggested a possible repeat of it in the future. Following a federal indictment for his behavior, he was convicted of breaching and occupying restricted Capitol grounds.

“January 6, 2021 was a dark day in our history. The court’s ruling today is a historic moment for our country. Mr. Griffin’s removal and bar from holding office again is a step towards obtaining justice and restoring the rule of law,” said Dodd Law Office, LLC President Christopher Dodd.

“The Court’s decision to remove and bar Mr. Griffin from public office represents a crucial step toward restoring the rule of law in our country and protecting our democracy from future attack,” said the Law Office of Amber Fayerberg, LLC Founder Amber Fayerberg.
Click here to read the court’s decision.

Public Opinion and SCOTUS

 Chuck Todd at al. at NBC:

In our latest national NBC News poll — conducted after June’s decision overturning Roe v. Wade — the court’s favorability rating has sunk to 35% positive, 42% negative among registered voters.

And a combined 37% of voters say they have very little or no confidence in the nation’s highest court, versus 27% who have great or quite a bit of confidence in the institution.

That’s a reversal from our poll in 2019, when 39% said they had high confidence, while 17% had low confidence.

One more way to look at this image decline: In Jan. 2021 — so at the start of the 6-3 conservative court — almost every demographic group had a net-positive view of the court, including among Democrats, independents and Republicans.

Now? Democrats are at minus-51; independents are at minus-8; and Republicans are plus-36.

Chief Justice John Roberts has stressed the importance of the public’s trust and the dangers of inappropriate political influence.

And Justice Sonia Sotomayor warned that the Supreme Court wouldn’t survive the “stench” of overturning Roe v. Wade.

Well, look at the numbers now.

A Rare Courtroom Moment

Many other posts have discussed  conspiracy theorists.

Alex Jones is in a lot of trouble.

 

“Do you know what perjury is?” pic.twitter.com/awbBpVf4Tl

— Acyn (@Acyn) August 3, 2022

 

Alex Jones's text messages — which showed he withheld evidence — were read to him in a brutal cross-examination on Wednesday after his lawyers apparently mistakenly sent them to a lawyer for Sandy Hook parents. "Do you know what perjury is?" he was asked. https://t.co/wIznbLEKYq

— The New York Times (@nytimes) August 3, 2022

Clarence Thomas

Sam Baker at Axios:

The big picture: Thomas has spent years essentially laying out a whole parallel understanding of the law. He’s one of the court’s most prolific authors of solo dissents, according to Adam Feldman of Empirical SCOTUS, and has also written a slew of solo concurrences similar to last week's.Thomas doesn't just write a dissent here and an additional point about a majority holding there, but rather has created a whole ecosystem of opinions that build on and reference each other almost in the same way as the court’s actual precedents, except for the fact that they are all one man speaking only for himself.

Thomas’ solo opinion in last week’s abortion case cited 11 of his past opinions, 10 of which were solo opinions. It drew more heavily from the Clarence Thomas Cinematic Universe than from the rest of the court’s historical precedents, dissents and non-Thomas concurrences.

But as the makeup of the court has shifted around him, Thomas’ views have gotten more influential. And that influence will only grow.“There’s this whole array of concurring and dissenting opinions that are now available for the majority on the court to take more seriously,” said Ralph Rossum, a professor at Claremont McKenna College who wrote a book about Thomas.

Thomas has been able to “plow the field and plant the seeds” that other justices would later “harvest” for their own majority opinions, even if they didn’t join Thomas at the outset, Rossum said. “You see that coming to fruition again on abortion,” Rossum said.

Details: The Supreme Court has protected rights to abortion, same-sex marriage, same-sex intercourse and contraception under the same legal doctrine, known as “substantive due process.”Thomas rejects that entire theory, and so he would throw out every ruling that relies on it.

“That's classic Thomas. There isn't a justice on the court less committed to reliance on precedent than Thomas,” Rossum said. He said Thomas believes the court spends too much time interpreting its own work and too little time on the Constitution.

Supreme Court: Attitudes and Knowledge

From C-SPAN:

As the Senate prepares to consider a new U.S. Supreme Court justice, a new online national survey of more than 1,000 likely voters conducted for C-SPAN demonstrates strong public interest in the Court's work and awareness of the Court’s relevance. 

Over four in five respondents (84%) say Supreme Court decisions have “an impact on their

everyday lives.” Further, two-thirds (65%) say the Court should allow TV coverage of its oral arguments, with 70% saying allowing TV cameras would build trust in the Court.  

C-SPAN asked Pierrepont Analytics LLC to examine public awareness of the U.S. Supreme Court and related concerns such as trust, transparency, live oral argument audio awareness (a COVID-related innovation), and other topics including support for a Court Code of Ethics, 18- year terms for justices and TV cameras in the courtroom.  

Forty-six percent of respondents see the Court as a partisan institution. “Trust in the federal

government has taken a powerful hit in recent years,” said Robert Green, pollster

for Pierrepont Analytics. “But there is one ray of light among the gloom. Under-50 American voters are much more likey to listen to Supreme Court oral argument audio than age 50+ voters. Awareness and exposure to oral arguments audio are building favorability and trust in the Court.”   

The Supreme Court began providing live audio of its oral arguments during the pandemic, in May 2020. Green pointed out that, according to the survey, American voters younger than 50 are much more likely to know (55%-38%) there are live audio oral arguments and more likely to have listened than age 50+ voters. Under-50 age voters are especially likely (58%) to say oral argument audio has provided them a more favorable view of the Supreme Court.

“This survey demonstrates that Americans have found and are listening to the Court's oral

arguments and that listeners are coming away with a generally higher opinion of the Court,” said C-SPAN co-CEO Susan Swain. “That’s a strong message that more transparency is good for the Court — and good for the public.”

Other key survey findings:

• Only 56% of voters understand that the three branches of government are co-equal.  
• Among the 44% who say the branches are not equal: Respondents say the Executive branch has the most power (51%), then the Legislative branch (26%) followed by the Judiciary (23%).  
• One in four (28%) U.S. voters identified Ketanji Brown Jackson, President Biden's justice nominee, by name. (Another 15% could report that the new Supreme Court nominee is a Black female judge.)
• 42% say the Senate confirmation hearings are “an effective and fair tool” for deciding onCourt appointees.
• Among the sitting justices, the two best known are Clarence Thomas (24%) and Chief Justice John Roberts (22%).
• Only one landmark Supreme Court case is well-known to American voters: Roe v. Wade (named by 40%); next: Brown v. Board of Education (named by just 6%).
• Voters favor greater racial diversity (69%) on the Court, and 59% say it would be better if justices came from a more diverse set of universities beyond northeastern Ivy League colleges.
• Voters support an 18-year term limit for justices (69%) over the current lifetime
• appointments.
• Voters support a Code of Ethics for the Supreme Court (72%).
  

See what the public thinks in the complete poll results:  

www.c-span.org/SCOTUSsurvey2022/

Case on Civic Education

Mark Walsh at Education Week:

Students asserting the right to an adequate civics education have lost their appeal of a federal court ruling that dismissed their suit accusing the state of Rhode Island of failing to prepare them for the duties of citizenship.

Like the federal district judge who had ruled in the case, now known as A.C. v. McKee, a three-judge panel of the U.S. Court of Appeals for the 1st Circuit, in Boston, lauded the student plaintiffs for their effort but ultimately concluded that their suit could not prevail.

“The students have called attention to critical issues of declining civic engagement and inadequate preparation for participation in civic life at a time when many are concerned about the future of American democracy,” a unaninous three-judge appeals panel said in an unanimous Jan. 11 decision.“Nevertheless, the weight of precedent stands in the students’ way here, and they have not stated any viable claim for relief.”

The lawsuit was filed in 2018 on behalf of 14 students, but was also a proposed class action on behalf of all public school students in Rhode Island. It alleged that state officials have failed to provide students with a meaningful opportunity to obtain an adequate education to prepare them to be capable citizens.

Presidents Are Not Kings

In a 39-page ruling, Judge Tanya S. Chutkan of the U.S. District Court for the District of Columbia held that the ex-president cannot keep documents away from lawmakers when the incumbent president agrees they should see the files.

Plaintiff does not acknowledge the deference owed to the incumbent President's judgment. His position that he may override the express will of the executive branch appears to be premised on the notion that his executive power "exists in perpetuity." But Presidents are not kings, and Plaintiff is not President. He retains the right to assert that his records are privileged, but the incumbent President 'is not constitutionally obliged to honor' that assertion. Public Citizen v. Burke, 843 F.2d 1473, 1479 (D.C. Cir. 1988)  Plaintiff is no longer situated to protect executive branch interestswith “the information and attendant duty of executing the laws in the light of current facts and circumstances.” Dellums, 561F.2d at 247. And he no longer remains subject to political checks against potential abuse of that power. Nixon v. GSA, 433 U.S. at 448

SCOTUS Approval

 Jeffrey M. Jones at Gallup:

Americans' opinions of the U.S. Supreme Court have worsened, with 40%, down from 49% in July, saying they approve of the job the high court is doing. This represents, by two percentage points, a new low in Gallup's trend, which dates back to 2000. The poll was conducted shortly after the Supreme Court declined to block a controversial Texas abortion law. In August, the court similarly allowed college vaccine mandates to proceed and rejected a Biden administration attempt to extend a federal moratorium on evictions during the pandemic.

Vaccination in Court

Many posts have discussed COVID, disinformation, and vaccine hesitancy.

Unanimous and all-GOP 7th Circuit panel (Reagan, Trump, Trump) makes quick work turning away students who argue Indiana University’s vaccination requirement is unconstitutional https://t.co/GvHAbexg2j pic.twitter.com/SPjOzy1pre

— Mike Sacks (@MikeSacksEsq) August 2, 2021

Scott Jaschik at Inside Higher Ed:

Writing for the panel, Judge Frank Easterbrook wrote: "People who do not want to be vaccinated may go elsewhere. Many universities require vaccination against SARS-CoV-2, but many others do not. Plaintiffs have ample educational opportunities."

...
He added: "Each university may decide what is necessary to keep other students safe in a congregate setting. Health exams and vaccinations against other diseases ... are common requirements of higher education. Vaccination protects not only the vaccinated persons but also those who come into contact with them, and at a university close contact is inevitable."
...

In addition, the judges noted that a university may do things to students because they are students, such as charging them tuition. "Undergraduates must part with at least $11,000 a year (in-state tuition) even though Indiana could not summarily confiscate that sum from all residents of college age."

The appeals court also said the First Amendment does not protect the students from the requirement. "The First Amendment means that a state cannot tell anyone what to read or write, but a state university may demand that students read things they prefer not to read and write things they prefer not to write. A student must read what a professor assigns, even if they student deems the books heretical, and must write exams or essays as required. A student who is told to analyze the role of nihilism in Dostoevsky's The Possessed but who submits an essay about Iago's motivations in Othello will flunk."

Opinion on Equal Justice

At Axios, David Nather reports on a new Ipsos poll:

By the numbers: Nearly six out of 10 respondents — 59% — disagreed with the statement "police treat all Americans equally," while 58% said the same about criminal justice courts and lawyers.

• Black Americans gave the system an especially strong vote of no confidence, with 84% disagreeing that police treat people equally and 76% saying the same about the courts.
• But 53% of white Americans, 62% of Hispanic Americans and 67% of Asian Americans also disagreed that police treat everyone equally, while 55% of white Americans and Asian Americans and 56% of Hispanic Americans voiced a lack of confidence in the courts.
• That lack of faith extended across virtually all other groups, including by gender, age, region, urban/suburban/rural residency, and education and income levels.
• The only hint of confidence in the police came from Republicans, with 51% saying police treat everyone equally (only 7% of Democrats and 18% of independents agreed). Just 42% of Republicans said the courts treat everyone equally.

Between the lines: Most Americans still have a positive view of the police, regardless of how they feel about equal justice. But that's not true of Black Americans — nearly six out of 10 (57%) said they have unfavorable views of the police and law enforcement.

...

When Americans face the courts, the poll found a large gap in their experiences, with Black and Hispanic Americans more likely to depend on court-ordered attorneys than other groups.

• 43% of white Americans and 52% of Asian Americans said they've had their own attorneys when they or a family member has had to appear in court.
• By contrast, just 29% of Black Americans and 39% of Hispanic Americans had their own lawyers, while 49% of Black Americans and 43% of Hispanic Americans had court-ordered attorneys.
• That's important because public defenders are widely considered to be overworked and underfunded, and because researchers have become concerned in recent years that some public defenders might have their own forms of implicit bias.

Public Opinion of the Supreme Court

 Chris Kahn at Reuters:

A majority of Americans want to end lifetime appointments for U.S. Supreme Court justices, according to an Ipsos poll for Reuters, though less than half are in favor of other efforts to reform the judiciary.

The national opinion poll, conducted on Thursday and Friday, found that 63% of adults supported term or age limits for Supreme Court justices. Another 22% said they opposed any limits and the rest did not express an opinion.

The poll also found that only 38% would support expanding the size of the court by adding four more justices. Another 42% said they would oppose doing so and the rest were unsure.

...

The poll found that only 49% of Americans have a "great deal" or a "fair amount" of confidence in decisions made by Supreme Court justices. In comparison, 43% of respondents expressed a similar amount of trust in decisions made by the White House and 32% said the same of decisions made by Congress.

En Banc Partisanship

Neal Devins and Allison have an article titled “Weaponizing En Banc,” forthcoming in The New York University Law Review. The abstract:

The federal courts of appeals embrace the ideal that judges are committed to rule of law norms, collegiality, and judicial independence. Whatever else divides them, these judges generally agree that partisan identity has no place on the bench. Consequently, when a court of appeals sits “en banc,” (i.e. collectively) the party affiliations of the three-judge panel under review should not matter. Starting in the 1980s, however, partisan ideology has grown increasingly important in the selection of federal appellate judges. It thus stands to reason (and several high-profile modern examples illustrate) that today’s en banc review could be used as a weapon by whatever party has appointed the most judges on any particular circuit. A weaponized en banc reflects more than just ideological differences between judges. We define the phrase to capture a “team mentality” on the courts of appeals – an us versus them – where the judges vote in blocs aligned by the party of the President who appointed them and use en banc review to reverse panels composed of members from the other team.

In this article, we test whether en banc review is now or ever has been weaponized. We make use of an original data set – the most comprehensive one of which we are aware – that tracks en banc decisions over six decades. Our findings are surprising in two very different ways. The bulk of our data indicates that rule of law norms are deeply embedded. From the 1960s through 2017, en banc review seems to have developed some sort of immunity from partisan behavior over time, and we unpack potential reasons why. But that important and long-lasting immunity could now be in danger. Our data from 2018-2020 show a dramatic and statistically significant surge in behavior consistent with the weaponizing of en banc. It is too soon to tell whether this is a temporary change or an inflection point indicating a more permanent shift. We consider both possibilities and, in so doing, highlight the critical role that en banc review plays in ascertaining judicial commitment to rule of law norms. The time may soon be upon us to confront the cost of en banc review in a regime where party identity frequently trumps other judicial impulses.

Notes on the Insurrection

Tom Dreisbach and Meg Anderson at NPR:

As a violent mob descended on the U.S. Capitol on Jan. 6, lawmakers and aides hid wherever they could, waiting for the military and police to arrive. But many of those who stormed the Capitol were military veterans themselves, who had once sworn to protect the Constitution. In fact, an NPR analysis has found that nearly 1 in 5 people charged over their alleged involvement in the attack on the U.S. Capitol appear to have a military history.

NPR compiled a list of individuals facing federal or District of Columbia charges in connection with the events of Jan. 6. Of more than 140 charged so far, a review of military records, social media accounts, court documents and news reports indicate at least 27 of those charged, or nearly 20%, have served or are currently serving in the U.S. military. To put that number in perspective, only about 7% of all American adults are military veterans, according to the U.S. Census Bureau.

Amy Worden and Marisa Iati at WP:

A Pennsylvania woman accused of helping to steal a laptop from House Speaker Nancy Pelosi’s office during the attack on the U.S. Capitol in Washington was ordered released from detention Thursday and placed in her mother’s custody.

Riley June Williams, 22, must stay in the home she shares with her mother and abide by other conditions of release, including avoiding contact with any witnesses or victims of the Jan. 6 Capitol storming. Federal Magistrate Judge Martin Carlson said he was releasing Williams in part because she had no prior criminal record, but he warned her that her mother, Wendy Williams, could be criminally charged if she fails to report to the court any violations of the conditions of release.

Unofficial transcript:

Miss Williams, when we met on Tuesday, one of the first things I did was advise you of your constitutional rights. And then I took steps to protect those rights by appointing aggressive, effective counsel to represent you here. That recital of rights wasn't just some hollow invocation of abstract principles. It was affirmation of the rights guaranteed to you by the United States Constitution. And it strikes me that that guarantee says something extraordinary and extraordinarily good about our Constitution. You are embraced by a presumption of innocence.

You are entitled to the assistance of counsel. You have a right to remain silent. All of these matters guaranteed to you by the Constitution, a constitution that protects the rights of those who are accused of transgressing society's rules. Some of the most basic of those rules are set forth in our Constitution. And one of the fundamental pillars of that constitution is the peaceful transition of power. That obligation that all citizens have to facilitate the peaceful transfer of power, it has been honored by generations of Americans for two hundred and thirty two years, it has become so commonplace that we often think very little of it.

But as President Reagan said in his inaugural, that process is a miracle. The allegations that bring you before me involve conduct that allegedly took place on January 6th of this year as Congress was endeavoring to fulfill its constitutional obligation to certify the will of the people and the votes of the Electoral College. You are cloaked in a presumption of innocence with respect to these matters. But the allegations set forth in the complaint relate to conduct that was antithetical to these constitutional values, conduct that involved a riot, a mob that sought to replace constitutional norms with the howling of a crowd.

We know now that the mob failed and the Constitution prevailed. The Constitution prevailed on January 6th of this year because Congress, stepping over the wreckage of its capital, met. and confirmed the vote of the Electoral College, setting the stage for the latest peaceful transition of power in this country yesterday. In the wake of those events on January 6th, it strikes me that the Constitution prevailed yet again in the wake of those events, the men and women of federal law enforcement, including the federal investigator and the assistant US attorney, the federal prosecutor involved in this case, fulfilled a duty that they had under the Constitution. They have sworn an oath under the Constitution to protect and defend that Constitution against all enemies, foreign and domestic.

And in pursuit of that constitutional obligation, a series of investigations have been launched into the matters that took place on January 6th. And those investigations have brought us here today together. It also occurs to me, Miss Williams, in a very personal and direct way, that the Constitution has is and will be prevailing in your case. As I noted a few moments ago when we first met, I invoked the Constitution on your behalf and I took steps to protect your constitutional rights by appointing counsel for you, your counsel.

Fulfilling the role of the Constitution contemplated has aggressively represented your interests here today. Wouldn't you agree, Miss Oelrich? [The judge at this point turns to the court appointed public defender in this case]. Wouldn't you agree, Miss Oelrich, that you have aggressively represented your client's interests here today?

Yes, Your Honor, I spent the last two days doing a lot of investigating. 

[And the judge turns to the prosecutor] On behalf of the United States, it is my view that over the past two days, you and your colleagues here and elsewhere have endeavored to fulfill your constitutional obligation to provide equal justice under the law to ensure the protection of individual rights and liberties while ensuring adherence to the rule of law.[

[And then the judge turns back to the defendant, Miss Williams, he says] so Miss Williams, in a very real and direct sense, you are being released today because the Constitution has prevailed, because your counsel has fulfilled her constitutional obligation and because the United States is also fulfilling its constitutional duty to strike hard blows but fair blows in the pursuit of justice. So, Miss Williams, I share that thought with you as you leave here today, that your freedom today, conditioned as it is by the orders that I have entered as a result of the prevailing of the Constitution.

And I'll leave you with this final thought, Miss Williams. The judge closes with us. The Constitution prevails here today and the Constitution will always prevail in this country.