#the rule of law and precedent

[dreaminginthedeepsouth]

This may be the biggest seizure of power by the federal judiciary in US history. Brace yourself. The Supreme Court conservatives, exuding the heady self-confidence of a team that knows it cannot lose, haven’t been coy about the jurisprudence they want to reshape or tear down. Religious liberty, abortion, guns — the Court has recently taken up and dispensed with a whole swath of cases at astonishing speeds, often dramatically changing the bench’s long-held posture in relative silence through the shadow docket. But perhaps on no topic has the Court telegraphed its intent more clearly than the administrative state, the power of federal agencies to regulate and make rules. The dry name belies a system absolutely critical to every corner of American life.

“If I want to dump chemical waste in a swamp, I’d prefer that the federal government not have power to regulate that,” Julian Davis Mortenson, professor at the University of Michigan Law School, told TPM. “If I want to pay people working in my factory a miserably tiny wage, or employ 12 year-olds, I’d rather the federal government not have the power to make a rule against that.” The Court is now stocked with justices hungry to shift the power back in the direction of those nonregulatory interests. In doing so, they’ll really be shifting power to themselves. “If the Supreme Court truly honored the rule of law and precedent, then they would acknowledge the power of the agencies that was granted to them by Congress in order to save our environment,” Sen. Elizabeth Warren (D-MA) told TPM of a recent illustrative case involving the Environmental Protection Agency. “But this is an extremist Supreme Court, so I’m very worried about the outcome.” Because Congress is already paralyzed on critical issues, the prospect of a future in which the administrative state is rendered toothless is also a future in which unelected, conservative Justices become the arbiters of what the government can and can’t do. It’s a right-wing fantasy, cherished and developed for decades, come to life.

[pochapal]

"banquet of miracles" sure is an interesting phrase. so too is the notion of rokkenjima being "cut off from the world".

[haycartsflowercarts]

Bees are Legally Fish and I appreciate California on a whole new level now

[woolandcoffee]

Another WOTUS decision from an activist judge, and I just can't stress enough how much the U.S. is captured by an activist, right-wing judiciary. If the courts were ever neutral arbiters who's only existence was to settle disputes and occasionally interpret the law, that time is long past. Our government is, in theory, set up on a system of checks and balances. Except that there is no realistic check upon the court system. At least, there is no realistic check upon the court system if the federal government refuses to act (either by ignoring clearly biased rulings, removing activist judges from the bench, or packing the courts with more moderate jurists).

Unless the judiciary is meaningfully reigned in, judges will continue to take more and more power. If judges continue to overrule federal agencies - who are empowered to act by Congress and the President, and employ thousands of experts to make informed decisions - for no reason other than that particular judge disagrees personally with the agency's decision, then we're effectively letting judges run the government. It doesn't matter who the President is, or what Congress does, it matters what some Harvard grad who wears a polyester robe to work and hasn't every worked an honest day in their life is. And that's a fucking problem.

[exclamaquest]

Proshippers once again proving they cannot read

it's especially funny that they said "the current supreme Court stance" when title 18 was held up by the supreme Court in a 7-2 decision in 2008

[my-friends-are-stalking-me]

I don;t consider myself to be someone of unusually strong morals, and yet I still have to many to ever join the Supreme Court

[consolecadet]

Big news: Google has lost its first antitrust case. Via Matt Stoller:

So what happens now? In this case, the judge will come up with remedies next year. The order could be broad, and will likely loosen Google’s control over the mobile app ecosystem. Google has already announced that it will appeal, so the case isn’t over.

That said, Google is likely to be in trouble now, because it is facing multiple antitrust cases, and these kinds of decisions have a bandwagon effect. The precedent is set, in every case going forward the firm will now be seen as presumed guilty, since a jury found Google has violated antitrust laws. Judges are cautious, and are generally afraid of being the first to make a precedent-setting decision. Now they won’t have to. In fact, judges and juries will now have to find a reason to rule for Google. If, say, Judge Amit Mehta in D.C., facing a very similar fact-pattern, chooses to let Google off the hook, well, he’ll look pretty bad.

[osshisan]

i used up all the energy i had for being upset about all the wrong i have to deal with in life while i was in middle & high school and now im just numb to all of it instead. don't really like it but what can you do

[chongoblog]

Wanna give a quick shoutout to the federal judge last week who struck down the Arkansas law that tried to outlaw gender-affirming care for minors, not only ruling it unconstitutional, but including 311 statements of fact all going against the gender-affirming care ban in a ruling that was 80 pages long. Especially since these statements make it harder for transphobes to appeal and iirc this is considered precedent.

[reasonsforhope]

"Tuesday’s [April 9, 2024] definition-shifting court ruling means nearly 50 governments must now contend with a new era of climate litigation.

Governments be warned: You must protect your citizens from climate change — it’s their human right.

The prescient message was laced throughout a dense ruling Tuesday from Europe’s top human rights court. The court’s conclusion? Humans have a right to safety from climate catastrophes that is rooted in their right to life, privacy and family.

The definition-shifting decision from the European Court of Human Rights means nearly 50 governments representing almost 700 million people will now have to contend with a new era of litigation from climate-stricken communities alleging inaction. 

While the judgment itself doesn’t include any penalties — the case featured several women accusing Switzerland of failing to shield them from climate dangers — it does establish a potent precedent that people can use to sue governments in national courts.

The verdict will serve “as a blueprint for how to successfully sue your own government over climate failures,” said Ruth Delbaere, a legal specialist at Avaaz, a U.S.-based nonprofit that promotes climate activism...

Courting the courts on climate

The European Court of Human Rights was established in the decade following World War II but has grown in importance over the last generation. As the judicial arm of the Council of Europe, an international human rights organization, the court’s rulings are binding on the council’s 46 members, spanning all of Europe and numerous countries on its borders.

As a result, Tuesday’s [April 9, 2024] ruling will help elevate climate litigation from a country-by-country battle to one that stretches across continents.

Previously, climate activists had mostly found success in suing individual countries to force climate action. 

A 2019 Dutch Supreme Court verdict forced the Netherlands to slash its greenhouse gas emissions by 25 percent, while in 2021 a French court ruled the government was responsible for environmental damage after it failed to meet greenhouse gas reduction goals. That same year, Germany’s Constitutional Court issued a sweeping judgment that the country’s 2019 climate law was partly “unconstitutional” because it put too much of the emissions-cutting burden on future generations.

Even in the U.S., young environmental activists won a local case last year against state agencies after arguing that the continued use of fossil fuels violated their right to a "clean and healthful environment."

But 2024 is shaping up to be a turning point for climate litigation, redefining who has a right to sue over climate issues, what arguments they can use, and whom they can target. 

To start, experts overwhelmingly expect that Tuesday’s ruling will reverberate across future lawsuits — both in Europe and globally. The judgment even includes specifics about what steps governments must take to comply with their new climate-related human rights obligations. The list includes things like a concrete deadline to reach climate neutrality, a pathway to getting there, and evidence the country is actually on that path...

Concretely, the verdict could also affect the outcomes of six other high-profile climate lawsuits pending before the human rights court, including a Greenpeace-backed suit questioning whether Norway's decision to grant new oil and gas licenses complies with its carbon-cutting strategy.

An emerging legal strategy

In the coming months, other international bodies are also expected to issue their own rulings on the same thorny legal issues, which could further solidify the evolving trend. 

The International Court of Justice, the International Tribunal for the Law of the Sea and the Inter-American Court of Human Rights all have similar cases working through the system.

"All these cases together will clarify the legal obligations of states to protect rights in the context of climate change — and will set the stage for decades to come," said Chowdhury, from the environmental law center."

-via Politico, April 9, 2024

[dreaminginthedeepsouth]

Judges gone wild!

ROBERT B. HUBBELL

JUL 6, 2023

          Oh, boy! This is getting out of hand! The State Department, DOJ, and Homeland Security were supposed to meet with leading social media companies on Thursday to discuss countermeasures to prevent foreign interference in the 2024 elections. Sounds like the kind of thing the federal government should be doing, right?

But those agencies abruptly canceled the meetings because a rogue federal judge in Louisiana issued an order (“preliminary injunction”) telling the government it could no longer communicate with social media companies. [Go back and read that breathtaking sentence again to let it sink in.]

          Why did Judge Terry Doughty tell the federal government not to communicate with social media companies like Facebook and Google? Because Judge Doughty believes right-wing conspiracy theory that the federal government has suppressed conservative speech on social media platforms. Even if that dubious proposition was true—it is not—the remedy issue by Judge Doughty amounts to an assault on the separation of powers in the Constitution. On a non-existent factual record, Judge Doughty restrained the federal government from performing core functions—like protecting public health and safety, preventing terrorism, and communicating with the public during emergencies.

          In a second unhinged opinion, Judge Reed O’Connor issued a nationwide injunction against a new rule restricting the sale of “weapon parts” used to create ghost guns. Apparently, Judge O’Connor wants to ensure that weapons used to kill school children will be untraceable.

          I will discuss Judge O’Connor’s ruling in tomorrow’s newsletter, but I cite it this evening to make the point that Trump-appointed judges are “flooding the zone” with bad-faith, lawless opinions that will never be affirmed. Why are those judges acting with impunity? Because they know the Supreme Court’s reactionary majority will do nothing to censure or reprimand the rogue judges. The phenomenon is yet another consequence of John Roberts exercising his leadership as Chief Justice of the United States of America. Until bad judges are rebuked and restrained by appellate courts or the Supreme Court, we will get more bad judges. It is that simple.

          Back to Judge Doughty and his egregious ruling prohibiting the federal government from contacting social media companies. Professors Leah Litman and Laurence H. Tribe have eviscerated the opinion in their article in Just Security, Restricting the Government from Speaking to Tech Companies Will Spread Disinformation and Harm Democracy. This is a must-read article for anyone who is concerned about the damage that Trump judges are inflicting on the rule of law.

          Litman and Tribe first address the fact that the state plaintiffs in the case—Louisiana and Missouri—do not have standing to bring the speculative interests of their residents in potential government censorship of big tech platforms. As Litman and Tribe explain, states have no “standing” to assert speculative and attenuated interests of their residents. Standing is a doctrine that enforces the “case or controversy” requirement that I discussed in last week’s newsletters. Standing focuses on the interests (or lack thereof) of the plaintiff, rather than the existence of a dispute per se. Litman and Tribe write,

Botching the standing analysis isn’t just a theoretical or formalistic error: the Constitution only gives federal courts the power to consider cases that involve actual disputes (also known as cases or controversies) and to redress actual injuries. If the plaintiff lacks standing, the federal court is supposed to dismiss the case. Full stop.

           But it gets worse. Judge Doughty has converted the First Amendment into a tool to prevent large swaths of the federal government from performing vital functions. Per Litman and Tribe, “To treat the First Amendment as creating something like a wall of separation between government and powerful private actors is utterly bizarre.”

          The most insulting and dishonest aspect of the opinion is the non-existent showing of any effort by the government to censor content at social media companies in a manner that violates the First Amendment. They explain,

There is also the fact that the district court made no effort to identify circumstances where the government came even close to coercing social media companies into doing something they didn’t want to do. Take the allegations concerning hydroxychloroquine. On pages 52-53 of the opinion, the district court recites the very serious allegation that the Department of Health and Human Services “suppressed speech on hydroxychloroquine” by having Dr. Anthony Fauci make “statements on Good Morning America and on Andrea Mitchell Reports that hydroxychloroquine is not effective.

          That’s it! The alleged censorship is Dr. Fauci sitting on a sofa on Good Morning America discussing government guidance regarding healthcare and vaccines during a pandemic. There is more, and it is maddening. But the government has already appealed Dougthy’s decision. If you want more details, please read the article by Litman and Tribe.

“Standing” vs. “case or controversy.”

          Before this challenging period is over, we will all become experts in the constitutional doctrines of “standing” and “case or controversy.” The constitutional requirement of a “case or controversy” necessary to invoke the jurisdiction of federal courts seems straightforward. But the caselaw is complicated because judges frequently use standing and the case or controversy requirements as a conclusion��to justify the current judicial trend toward activism or restraint.

          In simple terms, there is no “case or controversy” if no dispute currently exists. A dispute can relate to a past or threatened future injury—but the dispute must be real. For example, there is no “case or controversy” if a person sues the state legislature for diminution in the value of their house because they fear the legislature might pass legislation requiring them to allow members of the public to camp in their backyard. On those facts, there is simply no existing dispute.

          “Standing” focuses on the question of whether the plaintiff has the right to assert their interest in an existing dispute. Suppose California passes the law described above and a person who owns a home in Nevada brings suit against the California legislature to enjoin the legislation from going into effect. There is an existing “case or controversy,” but the Nevada homeowner does not have standing to seek the remedy of an injunction.

          In some cases, there is no case or controversy and the plaintiff lacks standing even if there was an existing dispute. The 303 Creative web design case is a good example. There was no existing dispute (or impending threat of a dispute) because no one had asked for a same-sex website over the objection of a web designer who opposed same-sex marriage. Moreover, Lorie Smith lacked standing because she was not in the business of designing websites! Some other plaintiff who was actually engaged in the business of designing websites may have had standing, but Lorie Smith did not.

          The above explanation is a gross oversimplification, but I hope it will be helpful in sorting out the references to “case or controversy” or “standing.” For a very deep dive into the question of standing in the 303 Creative case, see Standing, Out of Nothing - by Jay Kuo - The Status Kuo (substack.com).

[allthecanadianpolitics]

The B.C. Supreme Court has ruled that a traditional Wet’suwet’en trespass law cannot “coexist” with the injunction order issued to Coastal GasLink in response to pipeline protests from the nation’s hereditary leadership. As a result, Chief Dsta’hyl, a Wing Chief of the Likhts’amisyu Clan of the Wet’suwet’en Nation who also goes by Adam Gagnon, was found guilty of criminal contempt in a Smithers courtroom on Tuesday morning. To be found guilty of contempt of court, the prosecution needs to establish that a person is aware of a court order and violated it intentionally. To meet the threshold for criminal contempt, the violations must be public in nature. In making the decision, Justice Michael Tammen rejected a defence argument that could have set precedent in cases involving conflicts between Canadian court orders and Indigenous legal orders. [...] The defence argued that “subjugating Indigenous law to colonial law, when they both form part of the law of the land in Canada, brings the administration of justice into scorn, precisely the consequence that criminal contempt proceedings are meant to punish.”

Continue Reading

Tagging @politicsofcanada

[mostlysignssomeportents]

How Google’s trial secrecy lets it control the coverage

I'm coming to Minneapolis! Oct 15: Presenting The Internet Con at Moon Palace Books. Oct 16: Keynoting the 26th ACM Conference On Computer-Supported Cooperative Work and Social Computing.

"Corporate crime" is practically an oxymoron in America. While it's true that the single most consequential and profligate theft in America is wage theft, its mechanisms are so obscure and, well, dull that it's easy to sell us on the false impression that the real problem is shoplifting:

https://newrepublic.com/post/175343/wage-theft-versus-shoplifting-crime

Corporate crime is often hidden behind Dana Clare's Shield Of Boringness, cloaked in euphemisms like "risk and compliance" or that old favorite, "white collar crime":

https://pluralistic.net/2021/12/07/solar-panel-for-a-sex-machine/#a-single-proposition

And corporate crime has a kind of performative complexity. The crimes come to us wreathed in specialized jargon and technical terminology that make them hard to discern. Which is wild, because corporate crimes occur on a scale that other crimes – even those committed by organized crime – can't hope to match:

https://pluralistic.net/2021/10/12/no-criminals-no-crimes/#get-out-of-jail-free-card

But anything that can't go on forever eventually stops. After decades of official tolerance (and even encouragement), corporate criminals are finally in the crosshairs of federal enforcers. Take National Labor Relations Board general counsel Jennifer Abruzzo's ruling in Cemex: when a company takes an illegal action to affect the outcome of a union election, the consequence is now automatic recognition of the union:

https://pluralistic.net/2023/09/06/goons-ginks-and-company-finks/#if-blood-be-the-price-of-your-cursed-wealth

That's a huge deal. Before, a boss could fire union organizers and intimidate workers, scuttle the union election, and then, months or years later, pay a fine and some back-wages…and the union would be smashed.

The scale of corporate crime is directly proportional to the scale of corporations themselves. Big companies aren't (necessarily) led by worse people, but even small sins committed by the very largest companies can affect millions of lives.

That's why antitrust is so key to fighting corporate crime. To make corporate crimes less harmful, we must keep companies from attaining harmful scale. Big companies aren't just too big to fail and too big to jail – they're also too big for peaceful coexistence with a society of laws.

The revival of antitrust enforcement is such a breath of fresh air, but it's also fighting headwinds. For one thing, there's 40 years of bad precedent from the nightmare years of pro-monopoly Reaganomics to overturn:

https://pluralistic.net/ApexPredator

It's not just precedents in the outcomes of trials, either. Trial procedure has also been remade to favor corporations, with judges helping companies stack the deck in their own favor. The biggest factor here is secrecy: blocking recording devices from courts, refusing to livestream the proceedings, allowing accused corporate criminals to clear the courtroom when their executives take the stand, and redacting or suppressing the exhibits:

https://prospect.org/power/2023-09-27-redacted-case-against-amazon/

When a corporation can hide evidence and testimony from the public and the press, it gains broad latitude to dispute critics, including government enforcers, based on evidence that no one is allowed to see, or, in many cases, even describe. Take Project Nessie, the program that the FTC claims Amazon used to compel third-party sellers to hike prices across many categories of goods:

https://www.wsj.com/business/retail/amazon-used-secret-project-nessie-algorithm-to-raise-prices-6c593706

Amazon told the press that the FTC has "grossly mischaracterize[d]" Project Nessie. The DoJ disagrees, but it can't say why, because the Project Nessie files it based its accusations on have been redacted, at Amazon's insistence. Rather than rebutting Amazon's claim, FTC spokesman Douglas Farrar could only say "We once again call on Amazon to move swiftly to remove the redactions and allow the American public to see the full scope of what we allege are their illegal monopolistic practices."

It's quite a devastating gambit: when critics and prosecutors make specific allegations about corporate crimes, the corporation gets to tell journalists, "No, that's wrong, but you're not allowed to see the reason we say it's wrong."

It's a way to work the refs, to get journalists – or their editors – to wreathe bold claims in endless hedging language, or to avoid reporting on the most shocking allegations altogether. This, in turn, keeps corporate trials out of the public eye, which reassures judges that they can defer to further corporate demands for opacity without facing an outcry.

That's a tactic that serves Google well. When the company was dragged into court by the DoJ Antitrust Division, it demanded – and received – a veil of secrecy that is especially ironic given the company's promise "to organize the world's information and make it universally accessible and useful":

https://usvgoogle.org/trial-update-9-22

While this veil has parted somewhat, it is still intact enough to allow the company to work the refs and kill disfavorable reporting from the trial. Last week, Megan Gray – ex-FTC, ex-DuckDuckGo – published an editorial in Wired reporting on her impression of an explosive moment in the Google trial:

https://pluralistic.net/2023/10/03/not-feeling-lucky/#fundamental-laws-of-economics

According to Gray, Google had run a program to mess with the "semantic matching" on queries, silently appending terms to users' searches that caused them to return more ads – and worse results. This generated more revenue for Google, at the expense of advertisers who got billed to serve ads that didn't even match user queries.

Google forcefully disputed this claim:

https://twitter.com/searchliaison/status/1709726778170786297

They contacted Gray's editors at Wired, but declined to release all the exhibits and testimony that Gray used to form her conclusions about Google's conduct; instead, they provided a subset of the relevant materials, which cast doubt on Gray's accusations.

Wired removed Gray's piece, with an unsigned notice that "WIRED editorial leadership has determined that the story does not meet our editorial standards. It has been removed":

https://www.wired.com/story/google-antitrust-lawsuit-search-results/

But Gray stands by her piece. She admits that she might have gotten some of the fine details wrong, but that these were not material to the overall point of her story, that Google manipulated search queries to serve more ads at the expense of the quality of the results:

https://twitter.com/megangrA/status/1711035354134794529

She says that the piece could and should have been amended to reflect these fine-grained corrections, but that in the absence of a full record of the testimony and exhibits, it was impossible for her to prove to her editors that her piece was substantively correct.

I reviewed the limited evidence that Google permitted to be released and I find her defense compelling. Perhaps you don't. But the only way we can factually resolve this dispute is for Google to release the materials that they claim will exonerate them. And they won't, though this is fully within their power.

I've seen this playbook before. During the early months of the pandemic, a billionaire who owned a notorious cyberwarfare company used UK libel threats to erase this fact from the internet – including my own reporting – on the grounds that the underlying research made small, non-material errors in characterizing a hellishly complex financial Rube Goldberg machine that was, in my opinion, deliberately designed to confuse investigators.

Like the corporate crimes revealed in the Panama Papers and Paradise Papers, the gambit is complicated, but it's not sophisticated:

Make everything as complicated as possible;

Make everything as secret as possible;

Dismiss any accusations by claiming errors in the account of the deliberately complex arrangements, which can't be rectified because the relevant materials are a secret.

If you'd like an essay-formatted version of this post to read or share, here's a link to it on pluralistic.net, my surveillance-free, ad-free, tracker-free blog:

https://pluralistic.net/2023/10/09/working-the-refs/#but-id-have-to-kill-you

My next novel is The Lost Cause, a hopeful novel of the climate emergency. Amazon won't sell the audiobook, so I made my own and I'm pre-selling it on Kickstarter!

Image: Jason Rosenberg (modified) https://www.flickr.com/photos/underpants/12069086054/

CC BY https://creativecommons.org/licenses/by/2.0/

--

Japanexperterna.se (modified) https://www.flickr.com/photos/japanexperterna/15251188384/

CC BY-SA 2.0: https://creativecommons.org/licenses/by-sa/2.0/

[wilwheaton]

The conservative justices had an opportunity to rally to the defense of democracy, to gird the system against further attack, to righteously defend the rule of law, and to protect its own prerogatives and powers against a wannabe tyrant who is counting on them to be his supplicants. They could have drawn a sharp line. They could have summoned indignation and outrage. They could have overlooked their partisan priors in favor of principle – or more cravenly in favor of self-preservation. With the possible and limited exception of Justice Amy Coney Barrett, they did none of that. They failed in the worst possible way at the most crucial time.

Rogue SCOTUS Abandons Democracy In Her Hour Of Greatest Need

Say this with me: This SCOTUS majority is not an impartial arbiter of law. This SCOTUS majority has no respect for precedent, the will of the people, or its fundamental role in government.

This SCOTUS majority is doing through force what the other members of their movement could not achieve through elections: change laws to take equality and freedoms away from as many people as possible, to completely remake America into something we don’t recognize.

Donald Trump and his cult are the greatest threat America has ever faced in its history, with this corrupt, venal, activist group of unelected liars (and at least two rapists) enabling him.

Democrats absolutely have to expand the court and begin an impeachment inquiry into Thomas and Kavanaugh the instant they have congressional majorities. 

I don’t think it’s too late, but it’s about five seconds away from being too late. If Congress doesn’t act hard and fast, these seven people will turn America over to corporations and megachurches.

We have to stop this, and the only way we have any chance at all is to turn out in massive numbers this November to overwhelmingly defeat the people who will put Project 2025 into action.

[liberalsarecool]

That is the right wing plan. It is more than Trump. More than MAGA. This is bigger than one election.

This is an endless fight. For every progressive win, there is a fascist reactionary backlash.

Conservative SCOTUS will rule against all precedent and established law to benefit the patriarchal and misogynist ruling class.

Fascism is the ruling class methodology and ideology.

Elections help kill fascism.

[ghelgheli]

does it even matter if it's plausibly "retaliation" for a proximate act in direct violation of sovereignty tho? does it matter if you can trace a justification thru something legible to international law and liberal politics of punishment? maybe this is rhetoric you can use to convince the odd person still straddling the fence, but doesn't our conviction long precede this? the fact of occupation is unacceptable, and time and time again it has been made clear that no solution is possible except by force. is that not enough? even if it was two weeks ago, before the bombing of the consulate, i am sure you would not be condemning the missiles raining on the military bases of the occupation. even better if it was two decades ago. right? these are the rules of international legitimation and we do not have to play by them.