Upcoming Supreme Court Term May Be the Most Epic

As if the drama this year concerning the pending retirement of Justice Kennedy weren’t enough for SCOTUS aficionados, this fall’s term for the Court could prove to be the most critical in a very long time.

And the decisions coming down will be a bellwether with Justice Gorsuch adding in his two cents.

Two cases in particular will set massive precedents for decades to come.

First is a case on gerrymandering in which liberals are suing the Republican Party in Wisconsin for, essentially, drawing district lines that are too unfair for Democrats.

If the Court agrees, it will force the redrawing of as much as a third of districts across the country.

Second is a case that could overturn Obama’s “Waters of the US” rule which essentially declared every puddle in America property of the EPA.

If the Court invalidates the rule, the EPA’s grip via draconian regulations will come to an end…at least over water.

Here’s more from Daily Signal…

Monday, Oct. 2 marks the start of a new Supreme Court term.

While the arrival of Justice Neil Gorsuch made major headlines, the cases last term did not gain much attention. The Court’s 2017-2018 term, however, promises to be one for the history books.

In their first few weeks back, the justices will tackle several important issues including partisan gerrymandering, the Waters of the U.S. rule, and corporate liability under the Alien Tort Statute. Here’s a look at these upcoming cases.

On Oct. 3, the Supreme Court will be pulled into the political thicket of legislative redistricting in Gill v. Whitford. This case out of Wisconsin involves the Republican-controlled legislature’s 2011 redistricting plan.

A three-judge panel invalidated the plan, finding that the Republican legislature intended to “entrench” its power—despite the fact that the plan complied with traditional criteria, such as compactness and contiguity, and that the Supreme Court has previously declined to hear cases involving partisan gerrymandering, as opposed to racial gerrymandering challenges.

In this case, the challengers have come up with a new theory for challenging a plan that otherwise meets the Supreme Court’s criteria.

This new theory—the “efficiency gap”—claims that votes for one party over a certain threshold are “wasted” and shows that a plan has been drawn to pack voters of one party into a small number of districts.

Another explanation is that like-minded voters simply tend to live near one another.

Will the Supreme Court decide to intervene? Or will the justices say that political disputes are better left to the political branches?

Given that the “efficiency gap” theory could spell doom for one in three redistricting plans, the Court may be reluctant to endorse it.

Read more…


Courts, Issues, States

Round Two: Texas Wins Judgment on Sanctuary Cities

You may recall our report previously on the liberal federal judge in San Antonio who ordered an injunction on Texas’ new law against sanctuary cities.

That order has just been overturned by the 5th Circuit Court which decided in favor of the state’s appeal.

The three-judge panel essentially agreed that Texas has the right to pursue justice on behalf of the people until such time as the law is ruled invalid by the courts.

In other words, the pause button liberal judges have been hitting so much lately on conservative laws isn’t gonna fly in Texas.

Amid the battle against judicial tyranny, we’re well reminded not all judges are derelict.

Here’s more from the Daily Signal…

Texas has just won the second (procedural) round in the fight over the state Legislature’s attempt to punish cities that implement sanctuary policies.

A three-judge panel of the 5th U.S. Circuit Court of Appeals temporarily stayed on Monday key portions of the injunction issued in September by a federal judge in San Antonio that prevented the state from implementing major parts of the law.

As explained here, the 2017 statute applies to illegal aliens arrested or otherwise lawfully detained by local law enforcement.

The core parts of the law ban Texas cities from prohibiting or “materially limit[ing]” local law enforcement from:

  1. Notifying federal immigration officials that an illegal alien has been arrested.
  2. Cooperating with immigration authorities (including honoring detainer warrants on illegal aliens issued by federal authorities).
  3. Allowing federal immigration officers to enter local jails to conduct investigations of criminal illegal aliens.

The lower court federal judge had enjoined Texas from implementing the second and third provisions. However, the 5th Circuit issued a stay of that portion of the injunction.

Holding that Texas was likely to succeed on the merits of those two provisions, the 5th Circuit lifted the injunction until the appeals court has a chance to consider the merits of the case. Otherwise, the “state necessarily suffers the irreparable harms of denying the public interest in the enforcement of its laws.”


Courts, Politics

Al Franken Obstructs Judicial Nominee for Being Conservative

Liberal Democrats in the U.S. Senate clearly don’t mind airing their nakedly political opposition to President Trump’s judicial nominees.

Earlier this week, Sen. Diane Feinstein attacked a judicial nominee for being Catholic chiding that ‘[your] dogma lives loudly within you.’

Amy Coney Barrett is a respected law professor at Notre Dame and is the mother of seven children.

Apparently that’s just too much to handle for Feinstein.

Then, not to be outdone, Sen. Al Franken anted up in his charge against a nominee for the 8th Circuit Court that, essentially, he’s too conservative.

Commenting on David Stras’ qualifications, Franken quipped, “if confirmed … Justice Stras would be a deeply conservative jurist in the mold of Supreme Court Justices Clarence Thomas and Antonin Scalia.”

No longer is being a qualified, accomplished legal scholar an important criterion for the courts.

Now if you’re conservative it really doesn’t matter.

Here’s more from Daily Signal…

Sen. Al Franken, D-Minn., seems determined to block a judicial nominee from his home state.

On Tuesday, Franken announced his intent to obstruct Minnesota Supreme Court Justice David Stras, the president’s nominee to the 8th U.S. Circuit Court of Appeals, by refusing to return Stras’ blue slip.

Why jam up the confirmation of a well-respected state jurist to the federal bench?

Franken lamented that “if confirmed … Justice Stras would be a deeply conservative jurist in the mold of Supreme Court Justices Clarence Thomas and Antonin Scalia, justices who the nominee himself has identified as role models.”

That sounds like a ringing endorsement to anyone who cares about the proper role of judges.

With his statement, Franken has clearly signaled that he won’t let through any conservative nominee from Minnesota. This was somewhat surprising since, after a delay, other Democrats have returned their blue slips, letting nominees from Michigan and Indiana proceed.


Courts, Issues

9th Circuit Finds In Favor of School Over Firing Coach for Prayer

Joe Kennedy is the former football coach at Bremerton High School in Washington state.

He’s the former coach because the school district fired him after he refused to stop praying at mid-field with students, players, parents and others after games.

His constitutional rights infringed, Coach Kennedy appealed to the U.S. judiciary which reportedly is tasked with upholding the Constitution.

But in a very unsurprising decision, Kennedy’s appeal to the U.S. 9th Circuit — the most liberal Circuit Court in the nation — was rejected when the court agreed that Kennedy’s insistence on praying in a public venue constituted religious oppression and therefore is not protected by the First Amendment.

He’s vowed to take the case to the U.S. Supreme Court where — should President Trump get a solid pick to replace Justice Kennedy — a reversal of the 9th Circuit is likely and will be a judicial atom bomb for the anti-Christian left.

Coach Kennedy served admirably in the U.S. Marine Corps for 20 years, but this battle may quickly become his greatest.

Here’s more from Daily Signal…

The Supreme Court could be the next stop for a high school football coach after a federal appeals court said a Washington state school district acted properly in firing him for praying in public after games.

A three-judge panel of the 9th U.S. Circuit Court of Appeals ruled Wednesday that Joe Kennedy “took advantage” of his authority as a teacher and assistant coach at Bremerton High School by praying after games, when he sometimes was joined by players and parents from opposing teams as well as his own.

In doing so, the judges decided, Kennedy acted to “press his particular views upon impressionable and captive minds before him,” adding:

By kneeling and praying on the 50-yard line immediately after games while in view of students and parents, Kennedy was sending a message about what he values as a coach, what the [school] district considers appropriate behavior, and what students should believe, or how they ought to behave.

Washington’s Bremerton School District has no legal obligation to return Kennedy to the job he held from 2008 to 2015, the Associated Press reported of the court’s two opinions totaling more than 60 pages.

“According to the 9th Circuit, it is unconstitutional for a coach to make a sign of the cross or bow his head in prayer when a player gets hurt,” said Mike Berry, deputy general counsel to First Liberty Institute, a public interest law firm that specializes in religious liberty cases and represents Kennedy, a former Marine.

“We are deeply disappointed by the decision and will consider all options available to Coach Kennedy as we continue to review the opinion,” Berry said in a prepared statement.

The Daily Signal has followed the Kennedy case since October 2015 and produced video reports on it last year.

“I just want the ability to go back out there and help these young men, and also have my constitutional rights that I fought for in the Marine Corps for 20 years,” Kennedy said in an interview with The Daily Signal’s Kelsey Harkness after filing suit last August.

Read more…



Checkmate: Trump Appeals Hawaii Judge’s Travel Ban Ruling to SCOTUS

As we reported earlier this week, liberal Hawaii federal Judge Derrick K. Watson changed his mind on his previous ruling about issuing an extension on the refugee travel ban to include ANY family member, despite the Supreme Court’s ruling.

And just as predicted, the Trump White House promptly responded with an appeal to the Supreme Court in which it plainly is asking the Court to slap down the Hawaii judge’s ruling and to enforce its own original decree.

We expect the administration will prevail in this given that the SCOTUS historically doesn’t take kindly to lower court judges modifying its decisions.

The seesaw court battle over whether refugees from any country can enter the US for any reason is far from over.

Here’s more from Redstate…

Late Friday night, the Trump administration kept its word and appealed the flip flop ruling of U.S. District Judge Derrick K. Watson in Hawaii, which again disrupts President Trump’s so-called travel ban directly to the Supreme Court.

As we reported previously, Judge Watson flipped flopped on this issue in the course of one week.

On July 6 Judge Watson denied an emergency motionchallenging President Donald J. Trump’s so-called travel ban. Hawaii and a local imam sought to have grandparents and other relatives exempt from the executive order, which the Supreme Court allowed to partially be implemented in June:

This Court will not upset the Supreme Court’s careful balancing and “equitable judgment” brought to bear when “tailor[ing] a stay” in this matter.

[. . .]

This Court declines to usurp the prerogative of the Supreme Court to interpret its own order . . .

Then on  July 13, Judge Watson decided differently and chose to rule on the relationship question instead of deferring to the Supreme Court as he said he should just a week earlier.



Lindsey Graham: Trump Could Appoint Four Supreme Court Justices

Sen. Lindsey Graham (R-SC) made a bold prediction on Fox News this week.

Just before Neil Gorsuch was confirmed to the Supreme Court, the average age of the members was 69.

What’s more, the average age that justices retire is 78. And three of them are near that mark or over it.

That means with three and a half more years of a Republican White House, the likelihood of multiple retirements increases exponentially.

And if the Democrats don’t prevail in 2020, Graham’s prediction — that Trump could appoint three or four justices — will almost certainly play out.

Here’s the kicker: all three of the oldest members are liberal.

Here’s more from Breitbart…

Friday on Fox News Channel’s “America’s Newsroom,” Sen. Lindsey Graham (R-SC) elaborated on a claim he made earlier in the week to a group in Washington, DC, which was President Donald Trump could appoint as many as four Supreme Court justices during his presidency.

Graham said the Russia was “standing in the way” of Trump getting some of the things completed on his agenda. However, he said the Supreme Court was still very much in play.

“We’ve got one,” Graham said. “We’ve got a couple of conservatives who may decide to step down and let a younger conservative take their job. All I can say is the Supreme Court vacancies that are to come in the next two or three years — maybe there won’t be any, but there could be three or four. So this is a big deal. I was telling those young Republicans that our party needs to deliver on health care. A better way of doing health care is to let your state do it, not Washington, cut your taxes, rebuild your roads and bridges, and give us a strong military. President Trump has a really good agenda.”




Hawaii Federal Judge Just Undermined the Supreme Court on the Travel Ban

Late last month the Supreme Court agreed to hear the challenge to President Trump’s refugee travel ban.

And in their decision the justices slapped down lower court injunctions by allowing the ban to remain active until the hearing.

They permitted one exception: immediate family members.

But now another Hawaii federal judge decided he knows better than the Supreme Court and expanded their exception to include any family relation.

The problem with that, of course, is many foreign governments in the Middle East don’t have sophisticated social security systems as in the U.S. that could verify family relationship.

Which is just one reason why allowing refugees en-masse from terror-laden countries is so dangerous.

But that apparently is of less concern than assuaging leftist, politically correct police.

So it’s deja vu all over again.

Here’s more from Redstate…

A week ago U.S. District Judge Derrick K. Watson in Hawaii denied an emergency motion challenging President Donald J. Trump’s so-called travel ban. Hawaii and a local imam sought to have grandparents and other relatives exempt from the executive order, which the Supreme Court allowed to partially be implemented in June.

Yesterday, a week later, Judge Watson decided differently and chose to rule on  the relationship question instead of deferring to the Supreme Court as he said he should just last week.

The emergency  motion, was filed by Hawaii and a local imam challenged the new guidelines issued by the State Department to implement the Supreme Court June 26, 2017 ruling which lifted parts of lower court injunctions blocking Trump’s Executive Order to remain in place. The guidelines revised rules about who will be admitted as refugees or from the six suspect countries targeted in President Trump’s January 27, 2017 Executive Order Protecting the Nation From Foreign Terrorist Entry Into the United States and the President’s March 6, 2017-revised version of the order, which narrowed the scope of his original order.

The motion, meant to again disrupt President Trump’s executive orders, asked Judge Watson to clarify what the United States Supreme Court meant by a “bona fide” relationship in its ruling last month. Specifically the plaintiff’s wanted the definition bona fide relationship expanded beyond the definition of parents, siblings and spouses established under federal immigration law and previous court rulings to include grandparents, cousins, aunts and uncles.



9th Circuit Shock: Slaps Down Hawaii Judge on Trump Travel Ban

The liberal San Francisco-based 9th Circuit Court of Appeals delivered a surprise decision in its recent review of an attempt by fellow liberal judge in Hawaii to circumvent the Supreme Court’s reinstatement of Trump’s travel ban.

The Supreme Court argued that the ban will remain in effect until a full hearing except for refugees who have an immediate family relation already in the U.S.

The Hawaii judge moved to broaden that definition to extended family as well. And that’s when the 9th Circuit denied the request to expand the exception.

But, in typical liberal fashion, it just couldn’t help itself from offering instructions on how exactly to get the exception granted.

Which means the circle firing squad among the federal courts will continue through the summer until the Supremes finally decide the case.

Here’s more from Breitbart…

One day after U.S. District Judge Derrick Watson denied the state of Hawaii’s motion to broaden the definition of “bona fide relationship” for refugees and visa applicants affected by Executive Order 13780, the Ninth Circuit Court of Appeals followed suit.

In its June 26 decision, the Supreme Court let stand the temporary travel and refugee ban contained in that executive order but added that the ban would not apply to refugees and visa applicants with a “bona fide relationship” to an American resident.

The Trump administration quickly defined “bona fide relationship” as parent, child, sibling, spouse or fiance. The state of Hawaii wants a broader definition that would include grandparents, aunts, uncles, cousins, and possibly more distant relations.

Late Friday, the Ninth Circuit said no to Hawaii’s request for an emergency appeal of Judge Watson’s denial, saying it lacked jurisdiction to hear the appeal.

But the liberal judges on the panel could not resist giving Hawaii a road map to get what they want.

The Ninth Circuit ruled that Hawaii should have asked Judge Watson to modify his previous injunction halting the Executive Order on March 15 (partially overturned by the Supreme Court on June 26) instead of asking for him to “clarify” the Supreme Court’s decision.



Kennedy Tells Clerks He May Retire Before ’18 Elections

Big news just came out concerning Justice Kennedy’s retirement and hardly anyone noticed.

So far most of the speculation about the timing of Kennedy’s stepping down has come from outside the court.

But now finally Kennedy himself has spoken.

He has reported to incoming court clerks that he is “considering retirement next year” just before the 2018 midterm elections.

This is massive news because it would allow the Republican Senate the opportunity to confirm a replacement before the election and also use it as a means to boost turnout among GOP voters.

Stay tuned…

Here’s more from Election Blog…

Big news hiding in Nina Totenberg’s story on Justice Gorsuch voting 100% with Justice Thomas:

But it is unlikely that Kennedy will remain on the court for the full four years of the Trump presidency. While he long ago hired his law clerks for the coming term, he has not done so for the following term (beginning Oct. 2018), and has let applicants for those positions know he is considering retirement.

Kennedy’s position on the court is more than consequential. In the most hotly contested and closely divided cases, his vote often decides the outcome. With every passing day, it has become more clear that President Trump’s first Supreme Court nominee, Neil Gorsuch, is probably even more conservative than the justice he replaced, Antonin Scalia.

This would put Justice Kennedy’s retirement right before the 2018 midterms, giving the Republican base reasons to turn out and keep the Senate with a Republican majority (already a strong possibility in 2018).



Congressmen Demand RBG Recuse Herself From Travel Ban Case

It’s been a landmark week for the Supreme Court and it’s only Hump Day.

The week began with a victory for the Trump administration, a victory for religious liberty and rumors of a possible retirement by Justice Kennedy. And now comes the escalation of the fight over Trump’s travel ban to be heard in October.

Earlier this month we reported on calls for liberal Justice Ruth Bader Ginsburg to recuse herself from the case given her very vocal opposition to President Trump.

And with the case scheduled for hearing, those calls are coming directly from dozens of congressmen — 58 to be exact — in a signed letter demanding she recuse.

She likely won’t…then again may just throw her hands up and retire. It’ll be interesting either way.

Stay tuned…

Here’s more from Redstate…

At the beginning of the month, I posted on an interesting articleby Dr. William Jacobson, a Cornell Law professor who runs Legal Insurrection, asking how, given Justice Ruth Bader Ginsburg’s numerous comments critical of President Trump, like speculating she and her husband might move to New Zealand if he were elected, could possibly rule on the Trump “travel ban” executive order. His reasoning is that if the 4th Circuit is permitted to use Trump’s campaign rhetoric to attack a facially legal policy, then the same standard must be used on Ginsburg:

In a case in which Trump’s campaign comments are front and center, how can Ginsburg hear a case in which she has complained publicly about Trump and Trump’s campaign?

This is not a situation where a Justice merely is presumed to have political leanings (don’t they all?), or is affiliated with one political party more than another. Justice Ginsburg has publicly questioned Trump’s credibility, and that credibility is an issue in the case as it presents itself in the 4th Circuit decision from which review is sought.

Now 58 members of the House of Representatives have sent her a letter demanding that she recuse herself from hearing the travel ban case.

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