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Supreme Court examines whether patent judges were appointed correctly

WASHINGTON – The Supreme Court on Monday scrutinized whether more than 250 administrative justices hearing patent disputes, some over billions of dollars, had been appointed in violation of the Constitution.

Several judges said during oral argument that they believe the judges, who sit on the Patent Trial and Appeal Board, an executive administrative tribunal established by a law of 2011, are doing work of ‘such importance and independence that they should have been appointed by the President and confirmed by the Senate.

“This structure is a real break with tradition,” said Judge Brett M. Kavanaugh. “These are decisions of several million, sometimes billions of dollars that are not made by someone who is responsible in the usual way.”

The constitutional separation of powers, he said, prohibits Congress from isolating executive officials of significant authority – even those whose job it is to settle disputes – from presidential control.

Malcolm L. Stewart, a federal government attorney, said patent judges, appointed by the Secretary of Commerce in consultation with the director of the US Patent and Trademark Office, were properly overseen by the director, who, like the secretary of commerce, is appointed by the president and subject to confirmation by the Senate. The director, he said, provided the judges with sufficient oversight so that they were not “senior officers” who themselves demanded a presidential appointment.

“The Director can issue binding guidelines regarding substantive patent law,” said Mr. Stewart. “He can designate specific advice from the board as precedent, thus making these opinions binding on future panels. It can also decide whether a specific examination will be instituted and which judges will sit on the committee. “

Chief Justice John G. Roberts Jr. responded that these methods “appear to be more or less a means of twisting the arms” of patent judges who do not meet the direct control required. The only thing the director cannot do, the chief justice said, is to change a decision made by a panel of patent judges.

The case of United States v. Arthrex, # 19-1434, arises from a challenge filed by Smith & Nephew, a medical technology company, against patents owned by a competitor, Arthrex, on a medical device. A panel of patent judges ruled that Arthrex’s patents were invalid.

Arthrex appealed to the United States Court of Appeals for the Federal Circuit, a specialized court in Washington, saying the patent judges’ decision should be overturned because they had not been properly appointed.

The appeals court agreed, ruling that judges performed important work without supervision and were therefore constitutionally “senior officers”, meaning they had to be appointed by the president and confirmed by the Senate.

On Monday, Judge Sonia Sotomayor asked how it was possible to reconcile judicial independence, even for administrative judges, and presidential control. “Isn’t that totally at odds with a judicial system of any kind?” she said.

Mark A. Perry, an attorney for Smith & Nephew, said the conflict warrants a flexible approach by Congress, an approach that should allow the current system. “There is an inherent tension in agency arbitration-type procedures between jurisdictional independence and presidential control,” he said, “and this balance can be achieved by Congress in so many ways and all over the place. long history has been achieved in many, many ways for so long. as the channels of authority are preserved.

But Jeffrey A. Lamken, an Arthrex lawyer, said more oversight was needed for executive officials who have the “final say in resolving billion-dollar disputes affecting the innovation landscape. “.

“For parties aggrieved by the loss of valuable rights,” he said, “there is no superior they can turn to asking them to overturn this bad decision.”

The appeals court’s solution to the constitutional problem was to strike down part of the law that protected patent judges from being dismissed without cause. This effectively demoted them from “senior officers,” the appeals court said.

The Supreme Court does not seem likely to adopt this particular solution and there does not appear to be a consensus on what should follow from a decision that patent judges were appointed in violation of the Constitution.

The Supreme Court’s ruling will affect more than 100 cases that were overturned by the appeals court, which originally ordered them to be repeated by juries of newly demoted patent judges. These hearings have been suspended while judges consider the case before them.

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A Supreme Court test for what remains of the voting rights law

But Paul M. Smith, an attorney for the Campaign Legal Center, who submitted a brief supporting the challengers, said the lower courts have developed a sane framework for identifying restrictions that violate Section 2.

“It’s not enough for a rule to have a racially disparate impact,” he said. “This disparity must be linked to, and explained by, the history of discrimination in the jurisdiction. We hope the court recognizes the importance of keeping this test workable, which plays a vital role in monitoring laws that operate to make voting more difficult for blacks or Latinos. “

The two groups of lawyers defending the Arizona measures have not agreed on the standard the Supreme Court should adopt to maintain the contested restrictions. Mr Brnovich, the state attorney general, said the disparate effect on minority voters must be substantial and caused by the contested practice rather than some other factor. Lawyers for the Arizona Republican Party have taken a harder line, saying race-neutral election regulations that impose ordinary voting burdens are not subject to challenge at all under Section 2.

Last year, the U.S. Court of Appeals for the Ninth Circuit in San Francisco ruled that Arizona’s two restrictions violate Section 2 because they disproportionately disadvantage minority voters.

In 2016, black, Latino and Native American voters were about twice as likely to vote in the wrong constituency as white voters, wrote Judge William A. Fletcher for the majority in the 7-to-4 decision. Among the reasons for this , he said, there were “frequent changes in the polling stations; confused placement of polling places; and high rates of residential mobility. “

Likewise, he wrote, the ban on ballot collectors has had a disproportionate effect on minority voters, who use ballot collection services much more than white voters because they are more likely to be poor, older, housebound or disabled; lack of reliable transportation, child care and courier services; and need help understanding the voting rules.

Judge Fletcher added that “there is no evidence of fraud in the long history of third party ballot collection in Arizona.”

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Supreme Court Will Not Hear Pennsylvania Election Case Over Mail-In Ballots

WASHINGTON – The Supreme Court said on Monday it would not hear an appeal from Republicans in Pennsylvania who sought to disqualify the ballots mailed in the 2020 presidential election that came after election day.

The brief court order gave no reason to dismiss the case, marking the end of the Supreme Court’s litigation over the election. Justices Clarence Thomas, Samuel A. Alito Jr. and Neil M. Gorsuch dissented, saying the court should have used it to provide guidance in future elections.

The dissenting judges acknowledged that the number of ballots at issue in the case was too small to affect President Biden’s victory in the state. But the legal question raised by the case – over the power of state courts to review election laws – was, they said, an important issue that should be resolved without the pressure of an impending election.

The Pennsylvania Supreme Court ruled in September that ballots sent out before election day could be counted if they arrived up to three days after. On two occasions before the election, the United States Supreme Court refused to intervene in the case, although several justices expressed doubts about the power of the state court to override the Legislative Assembly of the state, which set a deadline on polling day for receiving ballots by mail.

On Monday, Judge Thomas wrote that the time had come to take up the case.

“At first glance,” he writes, “it may seem reasonable to address this question the next time it arises. After all, the 2020 election is now over, and the Pennsylvania Supreme Court’s ruling was not decisive for the federal election. But however strong this argument may be in other contexts, it fails in the context of elections.

“Because the court system is not well suited to deal with these kinds of issues in the short time available immediately after an election,” Judge Thomas wrote, “we should use the cases available outside of this truncated context. to answer these questions, certainly important.

In a separate dissent, Judge Alito, joined by Judge Gorsuch, agreed that “our review at this time would be very beneficial.”

“A decision in these cases would have no bearing on the 2020 elections,” Judge Alito wrote. “But a decision would provide invaluable guidance for future elections.”

On October 19, before Judge Amy Coney Barrett joined the court, the justices found themselves in a deadlock, 4 to 4, over an emergency request in the case. Justices Thomas, Alito, Gorsuch and Brett M. Kavanaugh said they would have granted a stay blocking the Pennsylvania Supreme Court decision. On the other side were Chief Justice John G. Roberts Jr. and the three-member Liberal wing: Justices Stephen G. Breyer, Sonia Sotomayor and Elena Kagan.

Later that month, judges refused a plea from state Republicans to expedite a decision on the legality of the Pennsylvania Supreme Court.

In a statement released at the time, Judge Alito, joined by Justices Thomas and Gorsuch, criticized the court’s handling of the case, which he said had “unnecessarily created conditions that could lead to serious problems. post-election ”.

“The Supreme Court of Pennsylvania issued an executive order which outright amends an important statutory provision enacted by the Pennsylvania legislature under its authority under the Constitution of the United States to establish rules governing the conduct of elections for federal office.” , wrote Judge Alito adding that he regretted that the election was taking place “under a cloud”.

“It would be highly desirable to render a decision on the constitutionality of the state Supreme Court’s decision before the elections,” Judge Alito wrote. “This issue is of national importance, and it is highly likely that the state Supreme Court’s decision violates the Federal Constitution.”

But there was not enough time, he wrote. Yet Judge Alito left no doubt about his position on the issue in the case.

“The provisions of the Federal Constitution conferring on state legislatures, and not on state courts, the power to make rules governing federal elections would be meaningless,” he wrote, “if a court of The state could override the rules adopted by the legislature simply by asserting that the constitutional provisions of the state gave the courts the power to make the rules they deemed appropriate for the conduct of a fair election. “

Even after the election, Pennsylvania Republicans continued to seek a Supreme Court review in the Pennsylvania Republican Party v Boockvar case, No. 20-542, claiming judges should address the issue she presented of orderly manner.

“By resolving the important and recurring issues now, the Court can provide the advice that legislatures and state courts across the country desperately need outside of the context of a hotly contested election and ahead of the next election,” their report said. memory. “The alternative is for the court to leave legislatures and courts with a lack of advance guidance and clarity regarding the oversight law – only to be called upon to answer these questions in a future after-the-fact litigation over a contested election,” with the time that accompanies it. pressures and perceptions of partisan interest. “

On Monday, Judge Thomas wrote that the court had missed an opportunity.

“One wonders what awaits this tribunal”, he wrote. “We failed to resolve this dispute before the election, and therefore provide clear rules. Today we again fail to provide clear rules for future elections.

“The decision to leave the electoral law hidden under a veil of doubt is puzzling,” Judge Thomas wrote. “By doing nothing we are causing further confusion and erosion of voter confidence. Our citizens deserve better and expect more from us. “

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Supreme Court hears cases on abortion and immigration referrals

WASHINGTON – The Supreme Court on Monday agreed to rule on two initiatives by the Trump administration: one placing limits on a federal health program in an attempt to restrict access to abortion, and the other denying green cards to immigrants considered likely to make occasional use of public benefits like food stamps.

According to the court’s regular schedule, cases will be debated in the fall. But they might be moot by then, as President Biden has signaled that his administration is reconsidering both measures.

The abortion referral case concerns a program known as Title X, which helps poor women pay for birth control, preventive health screening for breast and cervical cancer, and treatment of sexually transmitted infections.

The program, established under a law enacted in 1970, prohibits federal grants from being “used in programs where abortion is a method of family planning.” The precise meaning of these words is disputed and, over the years, it has been the subject of various interpretations by different administrations.

The Trump administration announced in 2019 that clinics receiving money under the program could not refer patients for abortions at other facilities. Leading medical associations have said this “gag rule” violates medical ethics, and Planned Parenthood has withdrawn from the program.

Several states, the American Medical Association and others have filed a lawsuit challenging the measure, and federal appeals courts in San Francisco and Richmond, Va., Have rendered conflicting decisions. These divisions often lead to review by the Supreme Court.

The cases the court agreed to consider – Cochran v. Mayor and Baltimore City Council, # 20-454, American Medical Association v. Cochran, # 20-429 and Oregon v. Cochran, # 20-539 – may become irrelevant if the Biden administration revises restrictive regulations of the Trump administration.

The Immigration Case, Department of Homeland Security v. New York, # 20-449, concerns the so-called public charge rule, which seeks to discourage some immigrants from using public services.

The Trump administration announced in 2019 that it would revise the rule, which allows officials to deny permanent legal status, also known as a green card, to immigrants who may be in need of public assistance. In the past, only substantial and sustained financial aid or long-term institutionalization counted, and less than 1% of applicants were disqualified for reasons of public office.

The administration’s revised rule broadened the criteria to include “non-cash benefits meeting basic needs such as accommodation or food” used every 12 months over a 36-month period. Using two types of benefits in a single month counts as two months, and so on.

Mr Biden called for a quick review of the measure. One of its goals, he said, was “to reduce fear and confusion among affected communities”.

In August, the United States Court of Appeals for the Second Circuit in New York City ruled against the Trump administration, saying the new program would cool participation in public services for those who are eligible.

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Supreme Court rejects Trump’s final offer to block release of financial documents

WASHINGTON – The Supreme Court on Monday rejected a final attempt by former President Donald J. Trump to protect his financial records, issuing a brief unsigned order requiring Mr. Trump’s accountants to turn over his taxes and other records to New York prosecutors York.

The court order was a decisive defeat for Mr. Trump, who had gone to extraordinary lengths to keep his tax returns and related documents secret. No disagreement was noted.

The case involved a subpoena to Mr. Trump’s accountants, Mazars USA, by the office of Manhattan District Attorney Cyrus R. Vance Jr., a Democrat. The cabinet said it would comply with the courts’ final ruling, which means the grand jury should receive the documents as soon as possible.

Mr. Vance made a three word statement in response to the court order: “The work continues.”

The former president criticized the court’s action. “The Supreme Court should never have let this ‘fishing expedition’ happen, but it did,” Trump said in a statement. “This is something that has never happened to a president before, all of this is Democratic inspiration in a totally democratic place, New York City and the state, completely controlled and dominated by one of my very enemies. publicized, Governor Andrew Cuomo.

Under the rules of grand jury secrecy, it would generally be difficult to know when, if at all, the public would see the information. But The New York Times has obtained more than two decades of data on the tax returns of Mr. Trump and his companies, and recently published a series of articles about them.

Mr Trump, according to the reports, has suffered significant losses, owes huge debts that he is personally obligated to repay, has avoided paying federal income taxes in 11 of the 18 years the Times examined, and only paid $ 750 in 2016 and 2017.

The scope of Mr. Vance’s investigation is not known. This stems in part from an investigation by his office into quiet payments to two women who said they had had relationships with Mr. Trump, relationships the president has denied. But judicial statements from prosecutors suggest they are also investigating potential crimes such as tax and insurance fraud.

The subpoena targeted Mr. Trump’s tax records and financial statements since 2011, the engagement agreements with the accountants who prepared them, the underlying raw financial data, and information about how the data was analyzed.

As a candidate in 2016, Mr. Trump promised to disclose his tax returns, but he never did. Instead, he fought hard to protect returns from scrutiny, for reasons that have been the subject of much speculation. In 2019, the United States Court of Appeals for the Second Circuit in New York City ruled that state attorneys can require third parties to turn over the financial records of a sitting president for an investigation before a grand jury.

In a footnote to the ruling, Judge Robert A. Katzmann said Mr. Trump’s break with the practice of his predecessors was significant.

“We note that the last six presidents, dating back to President Carter, have all voluntarily made their tax returns public,” Judge Katzmann wrote. “While we do not give this fact decisive weight, it reinforces our conclusion that disclosure of personal financial information, by itself, is not likely to hamper the President in the performance of his duties.”

Mr. Trump appealed to the Supreme Court. In July, judges firmly rejected Mr. Trump’s central constitutional argument against the subpoena – that state prosecutors are powerless to investigate a sitting president.

“No citizen, not even the President, is categorically above the common duty to produce evidence when called upon in criminal proceedings,” Chief Justice John G. Roberts Jr. wrote for the majority in this decision.

Although Justices Clarence Thomas and Samuel A. Alito Jr. disagree with other aspects of the decision, all nine judges agreed with the proposition. But the court gave Mr Trump another opportunity to challenge the subpoena, on more limited grounds.

“A president can enjoy the same protections as all other citizens,” wrote Chief Justice Roberts. “These include the right to challenge the summons on any ground permitted by state law, which generally includes bad faith and excessive burden or magnitude.”

This is exactly what Mr. Trump did, but his arguments were rejected by a trial judge and a panel of three unanimous judges from the New York Federal Court of Appeal.

“All documents produced in connection with Mazars’ subpoena would be protected from public disclosure by the rules of grand jury secrecy,” the panel said in an unsigned notice, “which greatly reduces the plausibility of the allegation that the district attorney acts out of desire to embarrass the President. “

“There is nothing to suggest,” the panel added of the information sought, “that these are just trivial documents generally relevant to a grand jury investigation into possible financial or corporate misconduct. . “

Mr. Trump’s lawyers then filed an “emergency request” asking the Supreme Court to intercede. He urged the court to block the appeal court’s decision while it decides to hear another appeal from Mr. Trump.

“Even if the disclosure of his papers is limited to prosecutors and grand jurors, the status quo can never be restored once confidentiality is destroyed,” said the brief. “But the damage will be more than irreparable if the records are made public. It will be a pitch – the strongest possible basis for a stay. “

In response, lawyers for Mr. Vance – including Carey R. Dunne, who first argued the case; Walter E. Dellinger III, former Acting Solicitor General of the United States in the Clinton administration; and Michael R. Dreeben, a long-time former Deputy Solicitor General and a member of the team that helped Robert S. Mueller III investigate Russian interference in the 2016 election – the Times reported. The cat, they said, was out of the bag.

“The New York Times got its tax return data and describes that data in depth in a series of articles,” Mr. Vance said. “With the details of his tax returns now public, the privacy interests claimed by the claimant have become very mitigated if they survive. And even assuming there are some left, they cannot justify an extraordinary remedy from this tribunal that would deprive the only grand jury of the facts available to anyone who reads the press.

“This litigation has already considerably hampered the grand jury investigation,” the brief said. “There is no legal basis for the extraordinary remedy that the plaintiff seeks – or remotely justifies the additional delay it causes.”

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How Democrats are already maneuvering to shape Biden’s top Supreme Court choice

WASHINGTON – After a meeting at the Oval Office earlier this month with President Biden, Vice President Kamala Harris and fellow House Democrats, Rep. James E. Clyburn from South Carolina visited the office of Ms Harris in the West Wing to privately raise a topic that was not addressed in their panel discussion: the Supreme Court.

Mr Clyburn, the highest ranking African American in Congress, wanted to offer Ms Harris the name of potential future justice, according to a Democrat briefed on their conversation. District Court Judge J. Michelle Childs would honor Mr Biden’s pledge to appoint the first black woman to the Supreme Court – and, Mr Clyburn noted, she was also from state South Carolina having political significance for the president.

There may not be a vacant High Court post at the moment, but Mr Clyburn and other lawmakers are already maneuvering to defend candidates and a new approach for an appointment that could come as early as this summer, so that some Democrats are hoping Judge Stephen Breyer, who is 82, will retire. With Democrats holding the tiniest majority of Senate majorities and the death of Ruth Bader Ginsburg still painfully fresh on their minds, these party leaders want to shape Mr Biden’s nomination, including pushing the party away from the usual Ivy CVs. League.

The precocious jockey illustrates how eager Democratic officials are to leave their mark on Mr. Biden’s efforts to elevate historically under-represented candidates to historic Supreme Court appointments. But it also highlights baffling class and credibility issues within the Democratic Party that have been just below the surface since the days of the Obama administration.

Some Democrats like Mr. Clyburn, who have nervously watched Republicans try to repackage themselves as a working class party, believe Mr. Biden could send a message about his determination to keep Democrats loyal to their blue collar roots in choosing a candidate like Ms. Childs, who attended public universities.

“One of the things we have to be very, very careful about as Democrats is being painted with this elitist brush,” Clyburn said, adding, “When people talk about diversity, they always look at race. and ethnicity – I look beyond that to the diversity of experiences.

North Carolina Representative GK Butterfield, like Mr. Clyburn, a veteran member of the Congressional Black Caucus, made a similar point in an email to White House attorney Dana Remus last month listing the criteria caucus favorites for Federal Court appointments. Near the top of the list, Mr Butterfield said, was: “The judge should have diverse experience in several contexts and in several areas, including experiences outside of the law.

Mr Biden’s pledge to nominate the first black woman to court was sort of an unusual campaign pledge: Mr Clyburn pushed him to do so during a debate in Charleston ahead of South Carolina’s pivotal primary Last year. It was a wish even some of the president’s aides resisted, fearing it might sound like complacency.

Mr Biden has spoken little in public since his election about his preferences for the court, but as the former chairman of the Senate Judiciary Committee, he has a sort of split personality when it comes to personnel policy. While he’s happy to point out his Scranton, Pennsylvania roots, his roots, his public school graduation and his nickname “Middle-Class Joe,” he has long surrounded himself with gender-wielding aides and advisers. of pedigree that he lacks.

And some White House officials are already bracing for what they believe to be unfair right-wing attacks on the black woman they choose, believing that the prospective candidate must have a crisp resume. “It’s going to have to be someone with clear credentials, so it doesn’t appear to be an unqualified person,” said a senior Biden official, who spoke of possible court candidates under cover. of anonymity to share his thoughts from inside the West Wing.

Among the potential candidates proposed for a seat on the Supreme Court, Ms Childs has a background that differs from more recent candidates. Unlike eight of the nine current Supreme Court justices, Ms Childs, 54, did not attend an Ivy League college. Her mother worked for Southern Bell in Columbia, SC and Ms. Childs won a scholarship to the University of South Florida. She then graduated from the University of South Carolina Law School and became the first black woman to become a partner in one of the state’s leading law firms. Like a previous generation of jurists, she rose through the ranks in state politics before being appointed to the bench. Ms Childs was a senior official in the South Carolina Department of Labor before being appointed to the state’s workers’ compensation board.

“She’s the kind of person who has the kind of experiences that would make her a good addition to the Supreme Court,” Clyburn said.

Mr Clyburn, whose coveted support helped revive Mr Biden’s enrollment drive ahead of the South Carolina primary last year, has been particularly active on his behalf in what his advisers say are his most important request of the administration. The 80-year-old House Whip defended Ms Childs with Ms Harris; Mrs. Remus; and Senator Richard J. Durbin of Illinois, chairman of the judicial committee.

Bakari Sellers, a Democratic political commentator close to Ms Harris, also introduced members of the Vice President’s inner circle to Ms Childs, who was appointed to the federal bench by Mr Obama in 2010.

“Not just for our party, but also for justice, it is important to have someone who has had experiences,” Sellers said.

What prompted some of these officials to go public with a more aggressive form of advocacy are two developments.

First, they saw items on a shortlist in a column by Ruth Marcus in the Washington Post earlier this month, naming two potential successors to Breyer, who, like Ms Childs, are young enough to sit in court for a few decades. The two people named – U.S. District Judge Ketanji Brown Jackson of Washington, DC, and California Supreme Court Justice Leondra Kruger – both have Ivy League law degrees and important connections. Ms Jackson, 50, was a clerk for Mr Breyer himself and Ms Kruger, 44, was deputy solicitor general to Mr Obama.

There are a handful of other black women in their forties with elite titles who have caught the attention of lawmakers, including some members of the Judiciary Committee. There is Danielle Holley-Walker, Dean of Howard University Law School, and Leslie Abrams Gardner, Federal District Court Judge in Georgia, younger sister of Stacey Abrams.

The question of the moment is more important.

There are relatively few black women in federal appeals courts, where presidents often attract their Supreme Court candidates. Very soon, however, there will be another vacancy in the United States Court of Appeals for the District of Columbia Circuit – which can be a stepping stone to the High Court – when Judge Merrick B. Garland resigns to become a prosecutor. general. Ms Childs might be in a better position to advance to the Supreme Court if she were to sit on that appeals court, some of her admirers say.

“There is an immediate vacancy there, so I would argue for its consideration for the DC Circuit,” Mr. Butterfield, himself a former state Supreme Court justice, said of Ms. Childs. “And when and if there is a vacancy in the Supreme Court, it should also be considered for that.

Cheri Beasley, who lost her re-election as chief justice of the North Carolina Supreme Court by 412 votes in November, is another possible candidate for a seat on the court. She also went to a public university and rose through the judiciary through lower state courts. Still, Ms Beasley has told people she is considering running for the open North Carolina Senate seat next year, according to a Democrat who spoke to her.

When a court post occurs, several Democrats say they are preparing to bring out the tensions of the Obama era, which were covered up by former President Donald Trump.

Many members of the Congressional Black Caucus, as well as a number of white Democrats, say they believe the party is too closely tied to the elites and that this perception only gives Republicans political fodder during election season.

“It’s not criticizing the Harvards or the Yales, but I think there are some great lawyers who are really, really smart who come from other places on this earth,” said Senator Jon Tester of Montana, where the Democrats all lost three landmark races last year. “And I think we should consider them.”

Vi Lyles, the mayor of Charlotte, said: “Having the broadest perspective of what’s going on in the country makes you a better decision maker and a better leader.”

Persistent frustrations among black leaders, many of whom have attended public schools or historically black institutions, are even more delicate regarding Mr. Obama’s independent treatment of the Congressional Black Caucus and his administration’s apparent preference for people. nominated with elite titles.

“He was predisposed to Ivy League nominees, I think we can all agree on that,” Mr Butterfield said.

Mr. Sellers was even more brutal. “I love Barack Obama, but there was an Ivy League culture emanating from the White House, and we had to move away from it,” he said.

Frustration with Mr. Obama peaked with his selection of Mr. Garland to the Supreme Court after the death of Judge Antonin Scalia in 2016. Some Congressional Democrats thought the former president could have pressured Republicans and energized Democrats had he chosen a black woman and were furious when he said he was not looking for “a black lesbian from Skokie” .

What Mr. Clyburn will only say indirectly is that Mr. Biden owes not only black voters for his nomination, he is indebted to the African Americans who resurrected his candidacy in South Carolina and those in South which practically cemented his appointment three days later. as it swept the region on Super Tuesday.

Some African-American Democrats believe black Americans will rally behind the black woman Mr. Biden names and suspect Mr. Clyburn is looking for a rationale to elevate his home state and polish his legacy.

Yet few politicians preach more than Mr. Biden about the importance of “dancing with whoever brought you,” as the President often says. And so far Mr Clyburn has been able to install two of his closest allies into the administration, with former Rep. Marcia Fudge being appointed housing secretary and Jaime Harrison hired to lead the Democratic National Committee.

When asked if he could support Ms Childs in the High Court, South Carolina Senator Tim Scott, a Republican and the first black South Senator elected since Reconstruction, said he was not ready to to commit. But he congratulated her on having “a very good reputation” and said her appointment “would reflect the positive and powerful progress we have made in the great state of South Carolina.”

Mr. Scott was more blunt, however, when asked if Mr. Biden owed it to black voters in South Carolina, given the role they played in his path to the presidency.

“Jim Clyburn would say so,” he said with a smile.

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California’s Changing Relationship with the Supreme Court

The Biden administration’s visible support for Gov. Gavin Newsom’s vaccination campaign is just one of many ways changes at the federal level are affecting the Golden State.

But one transition that has been less discussed is how the legacy of former President Donald J. Trump shaping the Supreme Court will play out in California.

This month, we got a glimpse of the New Order when a shattered Supreme Court handed the challengers of the California pandemic restrictions their most important legal victory, blocking the state’s total ban on in-person worship in most counties.

[Read more about the ruling here.]

I spoke with Erwin Chemerinsky, the dean of Berkeley Law and an expert in constitutional law, about what this means.

Here’s our conversation, lightly edited and condensed:

First, can you talk broadly about the dynamic between the California government and the courts? I am thinking in particular of how many times has california sued the Trump administration.

Sure. Let me say the obvious: what you have is a liberal state and a conservative court. Under the Trump administration, you had a liberal state and a conservative president.

I think Attorney General Xavier Becerra has filed over 100 lawsuits against the policies of the Trump administration. Many of them were on their way to the Supreme Court at the end of the administration, many of them did not make it. Some are there now.

You have California contesting the Texas lawsuit, with the Trump administration on its side, trying to declare the Affordable Care Act unconstitutional. You have Trump’s threat to withhold money from cities and sanctuary states – which was on its way to the Supreme Court. And you could go on with a long list.

I don’t think you’ll see California defying the Biden administration nearly as often.

[Read about the Biden administration’s recent disavowal of the Trump administration’s challenge to the Affordable Care Act.]

One thing which is less obvious, but which remains important: there are places where the Supreme Court can conclude that there is no constitutional right, but the state can find a right. Like abortion.

I think there’s a good chance the Supreme Court will overturn Roe v. Wade. But California will continue to protect the right to abortion under the California constitution.

But there are still places where the Supreme Court will find a law that limits what the state can do.

I’ll give you an example: California passed a law that required religion-affiliated pregnancy crisis centers to post notices that the state would provide free, low-cost abortion and contraception to women who do not. were able to disclose that they did not have a license.

The Supreme Court, five to four, ruled this unconstitutional, saying it forced the speech in violation of the First Amendment. There, the Supreme Court used the right to overturn a progressive state law.

I think we saw it where Gavin Newsom imposed restrictions on religious worship and the Supreme Court banned some of it but allowed other parts to stay.

I was going to ask you what you did with that particular decision.

In deciding on worship restrictions, you must gather opinions. But I think the move from Judge Ruth Bader Ginsburg to Judge Amy Coney Barrett created a tribunal that is much more protective of religious institutions and less respectful of governors over Covid.

There are two things going on there. The first is that conservatives and liberals simply do not agree on the need for aggressive government action to deal with Covid. And I think the Conservatives and the Liberals disagree on the extent to which we should protect the free exercise of religion.

Are there similar and looming fights that you already foresee – like public health regulation, immigration or labor regulation?

California courts have attempted to limit the application of arbitration clauses in many contexts. But the United States Supreme Court has been very aggressive in enforcing arbitration clauses – I would expect more cases like this, with liberal courts in California wanting to do more to protect people’s rights. to go to court, and the Conservative Supreme Court said no, we want to enforce them.

[Read more about arbitration clauses and how they’ve affected corporations and workers.]

I think the Supreme Court will deal with many other Second Amendment cases. Many of the more progressive gun regulations that you see in California and state cities are going to face a much more conservative Supreme Court.

What about immigration? This has been at the root of much of the conflict between California and the Trump administration.

The key will be administration. Because what you’ve seen is that California is questioning a lot of the very restrictive policies of the Trump administration.

If we go back in four or eight years to a Trump-type administration on immigration, you’re going to see those conflicts again, but they’re going to be a lot less common with Biden.

Is there anything else Californians should pay special attention to?

One thing you’re going to see is that a lot more civil rights litigators choose to go to state court and use state law, rather than go to federal court. , given how conservative the Supreme Court is and how more liberal the California Supreme Court is. .

We’ve seen that when it comes to marriage equality – the earliest cases of gay and lesbian marriage were all in state court under state law.

What types of cases could this affect?

Imagine prosecuting a police officer for excessive use of force. A plaintiff might say, “I’d rather do this in state court, under state law,” especially if the California legislature passes new laws in this regard.

And certainly everything related to the right to education.


  • The Texas crisis sounded the alarm bells for electrical systems across the country: As climate change accelerates, power grids will face extreme weather events that go beyond the historical conditions for which these systems were designed. [The New York Times]

  • State cited Kaiser Permanente more than any other health care employer for not having adequately protected its workers. [CalMatters]

  • Los Angeles School Board voted to downsize police force and embezzle funds to improve the education of black students. [The Los Angeles Times]

  • San Francisco School Board delayed a vote confirming the district reopening plan, angry parents. [The San Francisco Chronicle]


California Today goes live at 6:30 a.m. PT on weekdays. Tell us what you want to see: CAtoday@nytimes.com. Have you been forwarded this email? Sign up for California Today here and read each edition online here.

Jill Cowan grew up in Orange County, graduated from UC Berkeley and has reported statewide, including the Bay Area, Bakersfield and Los Angeles – but she always wants to see more. Follow us here or on Twitter.

California Today is edited by Julie Bloom, who grew up in Los Angeles and graduated from UC Berkeley.

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Travel News

Supreme Court partially backs religious challenge to California virus restrictions

Justice Kim McLane Wardlaw, writing for the panel, said the church had failed to meet its burden of obtaining an injunction.

Notably, in response to the state’s mountain of scientific evidence, South Bay made no reference to anything on the record to support the idea that any restriction it seeks – 100% occupation with an addiction purely on mask-wearing, social distancing, and remediation measures – would be effective in meeting California’s compelling interest in controlling the spread of the community, ”Judge Wardlaw wrote. “South Bay’s self-serving claim that she suffered no incidence of the virus among her worshipers is entirely anecdotal and undermined by the evidence of epidemics at similarly situated places of worship.

Building on that decision, another panel of three judges from the Ninth Circuit followed suit in the Harvest Rock Church case. In a reluctant concurring opinion, Justice Diarmuid O’Scannlain urged the Supreme Court to intervene.

“California’s particularly severe restrictions on religious worship services – including its total ban on indoor worship in most of the state – are patently unconstitutional and should be banned,” he wrote. “The court’s refusal to do so in South Bay calls for a correction.”

“In exactly the same places where indoor worship is prohibited,” Justice O’Scannlain wrote, “California still allows a wide variety of secular indoor facilities to be opened, including ( to name a few): retail stores, malls, factories, food processing plants, warehouses, transportation facilities, daycare centers, colleges, libraries, professional sports facilities and movie studios. “

Last year, before Justice Ginsburg’s death, the Supreme Court allowed the governors of California and Nevada to restrict attendance at church services. In a pair of 5-to-4 orders, Chief Justice Roberts joined what was then the four-member Liberal wing of the court to form a majority.

The court changed course in November, after Judge Barrett arrived, in a case from New York. Disavowing the chief justice’s approach, the majority banned restrictions on religious services in New York that Governor Andrew M. Cuomo had imposed to fight the coronavirus.

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Travel News

Rules of the Supreme Court for Germany in the Nazi-Era Art Case

WASHINGTON – The Supreme Court on Wednesday unanimously sentenced heirs to Nazi-era Jewish art dealers in Frankfurt who sought to sue Germany in US courts over artifacts they say the dealers were forced to sell for a third of their value.

The case Federal Republic of Germany v. Philipp, No. 19-351, concerned the Guelph Treasure, a medieval religious art treasure trove estimated today to be worth $ 250 million. A consortium of three Jewish-owned companies bought the collection at the end of the Weimar Republic and sold about half of it to individual buyers and museums, including the Cleveland Museum of Art.

When the Nazi government took power, the collection attracted the attention of Hermann Goering, Hitler’s second in command and Prime Minister of Prussia. According to the heirs, he threatened the merchants with political persecution and physical harm to coerce them to sell the remaining artifacts in 1935 for much less than they were worth.

The pieces are now at the Museum of Decorative Arts in Berlin. In 2014, a German commission determined that the museum had acquired the collection legitimately. The commission said the 1935 sale to Prussia was voluntary and came after a year-long negotiation that resulted in a price halfway between the open positions of the two sides.

The heirs sued in federal court and a three-judge panel of the United States Court of Appeals for the District of Columbia Circuit ruled against Germany, saying the case could be continued .

The question for the judges was whether prosecution was prohibited by the Foreign Sovereign Immunities Act, which generally prohibits prosecution against foreign states. The law provides for some exceptions, including one for the expropriation of property.

Chief Justice John G. Roberts Jr., writing for the court, said the exception did not apply when a foreign government was accused of seizing the property of its own citizens.

The appeals court ruled that the heirs could invoke the exception because the artefacts were taken in connection with an act of genocide, relying on a provision in the law saying that sovereign immunity does not apply. not in cases “in which property rights taken in violation of international law are in question.” “

Chief Justice Roberts said the appeals court read that sentence too broadly.

“We do not need to decide whether the sale of the consortium property was an act of genocide, as the expropriation exception is best interpreted as referring to international law of expropriation rather than the rights of the ‘man,’ he wrote. “We are not looking to genocide law to determine whether we have jurisdiction over common law property claims of heirs. We are looking at the law of property. “

The Supreme Court rarely cites rulings from international tribunals in its rulings, but the chief justice made an exception on Wednesday, noting that the International Court of Justice had ruled in a case involving Germany that “a state is not deprived of immunity on account of being accused of serious violations of international human rights law. “

Chief Justice Roberts added that a general ruling could prompt lawsuits against the United States in foreign courts.

“As a nation, we would be surprised – and might even take reciprocal action – if a German court adjudicated Americans’ claims that they were entitled to hundreds of millions of dollars because of human rights violations. committed by the US government years ago, “he wrote.” There is no reason to expect that Germany’s reaction would be any different if the US courts exercised the claimed jurisdiction in this case. “

The Supreme Court sent the case back to the lower courts to consider “an alternative argument raised by the heirs” – that their relatives were not German nationals at the time of the 1935 sale and were therefore free to sue.

In their brief to the Supreme Court, lawyers for the heirs stated that German Jews had been deprived of the legal and economic rights normally associated with citizenship long before 1935. In response, lawyers for Germany wrote that “the laws depriving German Jews of citizenship were not promulgated until after the 1935 purchase ”and that in any event the heirs“ do not and cannot claim that they were nationals of another State.”

The court also issued a brief unsigned decision in a similar case, Republic of Hungary v. Simon, n ° 18-1447. He was brought in by 14 Holocaust survivors, including four US citizens, who said their property was stolen by Hungary and its state-owned railroad, which deported hundreds of thousands of Jews to the Nazi death camps in the summer of 1944.

The court’s opinion ordered the appeals court, which had allowed the case to continue, to reconsider its decision in light of the ruling in the German case.

The Supreme Court issued a third decision on Wednesday, Salinas v. United States Railroad Retirement Board, No. 19-199, allowing an injured railway worker to continue his business. It was the first 5-4 decision in a debated case in the court’s current tenure, and it was notable for the way the judges were divided.

Chief Justice Roberts and Justice Brett M. Kavanaugh joined the Liberal wing of three members of the court – made up of Justices Stephen G. Breyer, Sonia Sotomayor and Elena Kagan – to form a majority. Justices Clarence Thomas, Samuel A. Alito Jr., Neil M. Gorsuch and Amy Coney Barrett were dissenting.

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Ginni Thomas apologizes to her husband’s Supreme Court clerks for the discord she says she caused.

Virginia Thomas, a conservative legal activist and wife of Judge Clarence Thomas, regretted her role in the discord among former Judge Thomas jurists because of her support for President Donald J. Trump and the January 6 rally that preceded the storming. from the Capitol.

She apologized after the mob attack on the Capitol on a private mailing list called Thomas Clerk World. His comments were first reported by the Washington Post and confirmed by a former justice clerk.

The list has been largely devoted to updates on families and careers, as well as household issues such as dog breeding and baking, the clerk said. But in recent weeks, heated political debates had unfolded over the list among former clerks, almost all of them Conservatives.

Former clerks, like many Republicans, were deeply divided over whether Mr. Trump’s efforts to overturn the election were legitimate. Some said they believed the election was probably stolen, while others condemned what they called an insurgency.

Ms Thomas, known as Ginni, was an enthusiastic supporter of Mr Trump and expressed support for the January 6 rally in the days leading up to it. She did not express any public opinion supporting Mr. Trump’s false claims that the election was stolen.

“I owe you all an apology,” she wrote to the former clerks. “I probably imposed my lifelong passions on you.”

“My passions and beliefs are probably shared with the majority of you, but certainly not with all,” she added. “And sometimes even the smallest problems can divide loved ones for too long. Let’s pledge not to let politics divide THIS family and learn to speak more quietly and knowingly across the divide.

Justice Thomas is not on the mailing list, the former clerk said.

In a recent email, Ms Thomas called for reconciliation. “I would ask those of you on the opposite side to have grace and mercy from those on my side of the polarized world, and feel free to call and talk to me individually about what I have.” failed as a friend here, ”she wrote. “I probably need more tutoring.”