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SUPREMELY ALARMING

Watch: Kavanaugh’s Answers About the Obergefell Same-Sex Marriage Case and Discrimination Are Disturbing

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Nominee Mansplains to California Senator

Judge Brett Kavanaugh is refusing to say if he agrees the historic 2015 Obergefell Supreme Court ruling finding same-sex couples have a constitutional right to marriage was correctly decided. He also is refusing to say if he thinks the days of discriminating against LGBT people are over.

Late Thursday during his Judiciary Committee confirmation hearing (video below) the Trump nominee to the U.S. Supreme Court faced one of his greatest opponents, Democratic Senator Kamala Harris. Harris, her state’s former Attorney General for six years, and the District Attorney of San Francisco for seven years prior, is possibly one of the most precise questioners any modern-day Supreme Court nominee has ever faced.

“My question is, was the Obergefell case correctly decided, in your opinion,” Sen. Harris asked.

Judge Kavanaugh, clearly prepared for the question – and for ways to not answer it – found a multitude of ways around it. As several watching the hearing noted, he instead “mansplained” to the accomplished California Senator.

“Senator, Justice Kennedy wrote the majority opinion, in a series of five cases,” Kavanaugh responded, then began to list all the cases in a clear attempt to use up as much time as possible.

“If we could just talk about Obergefell,” Harris politely requested.

“I want to explain it,” Kavanaugh said, apparently thinking a U.S. Senator sitting on the Judiciary Committee, herself an attorney, might not understand the Supreme Court case.

“I actually know the history leading up to Obergefell, so can you please just address your comments to Obergefell?” Harris was forced to ask again.

“I’d like to explain it if I can,” Kavanaugh insisted. “He wrote the majority opinion in Romer v. Evans, Lawrence v. Texas, United States v. Windsor, Obergefell, and Masterpiece Cakeshop, concluding in Masterpiece Cakeshop, importantly, with a statement if I could just read this –”

Harris interjected, telling him, “No, don’t because I actually have read it and I’m sure most have. My question is very specific: Can you comment on your personal opinion on whether Obergefell was correctly decided? It’s a yes or no, please,” Harris urged.

“In Masterpiece Cakeshop, and this is I think relevant to your question, Justice Kennedy wrote the majority opinion, joined by Justice Robert and Justice Alito and Justice Gorsuch and Justice Breyer and Justice Kagan, ‘the day of discriminating against gay and lesbian Americans, or treating gay and lesbian Americans as inferior in dignity and worth, are over.”

“Are over,” Harris said at the same time. “Do you agree with that statement?”

Kavanaugh began to launch into another speech. Harris again was forced to reel him in.

“Sir, I’m asking your opinion,” Sen. Harris again reminded Kavanaugh. “You’re the nominee right now so it is probative of your ability to serve on the highest court in our land, so I’m asking you a very specific question. Either you’re willing to answer it or you’re not.”

When all was said and done, Kavanaugh refused to answer.

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News

Government Agencies Limited in Second Supreme Court Ruling This Week

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The Supreme Court has made its second ruling this week that limits government agencies’ ability to act on Friday.

Friday morning, the Court released its ruling in Loper Bright Enterprises v. Raimondo. Prior to the ruling, fisheries were required to allow federal officials on board their ships to make sure that overfishing doesn’t occur; the base of the suit is that the fisheries objected to having to pay the salaries for these officials.

The legal precedent at the center of the case is what’s known as the Chevron doctrine, based on the 1984 case Chevron U.S.A. Inc v. Natural Resources Defense Council, Inc. That ruling held that government agencies have the ability to interpret statutes in their sphere of influence where ambiguity exists, even if judges may disagree about an interpretation.

READ MORE: Supreme Court Throws Out Perdue Bankruptcy Plan That Protects Sackler Family

In this case, the National Marine Fisheries Service has interpreted the law to mean that fisheries have to pay officials’ salaries, while the fisheries argued that this overstepped the agency’s bounds.

Critics of this ruling, including Justice Neil Gorsuch, have argued that Chevron gives agencies too much power.

“[Gorsuch] argues that it is fundamentally the province of courts to say what the law is, and that Chevron makes it too easy for courts to simply find ambiguity in text and then defer to government agencies. He and others argue that it systematically tilts the power in a case in favor of the government and allows judges to abdicate their responsibility to engage in vigorous statutory review,” Sanne Knudsen, professor of environmental law at the University of Washington School of Law, said in a 2023 interview.

In Friday’s 6-3 ruling, made along ideological lines, the Court agreed with Gorsuch’s take. The opinion, written by Chief Justice John Roberts, explicitly overrules Chevron.

“[C]ourts need not and under the APA may not defer to an agency interpretation of the law simply because a statute is ambiguous,” Roberts wrote.

In a concurring opinion, Justice Clarence Thomas added that Chevron violates the separation of powers, as it “compels judges to abdicate their Article III ‘judicial Power,'” and “permits the Executive Branch to exercise powers not given to it.”

The mention of separation of powers is interesting, as Justice Sonia Sotomayor’s dissent in the other ruling that limited an agency’s powers this week accuses the Court of threatening the concept of separation of powers.

“The majority today upends longstanding precedent and the established practice of its coequal partners in our tripartite system of Government. Because the Court fails to act as a neutral umpire when it rewrites established rules in the manner it does today, I respectfully dissent,” Sotomayor wrote.

In that case, SEC v. Jarkesy, the Court ruled that the Securities Exchange Commission was unable to issue civil penalties without a trial. The SEC was initially given this power as part of the 2010 Dodd-Frank Wall Street Reform and Consumer Protection Act.

The Court struck this element of Dodd-Frank down in a 6-3 ruling, again along ideological lines. The court ruled, in another decision written by Roberts, that it violated the Seventh Amendment, the right to a jury trial.

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CORRUPTION

Politicians Accepting a ‘Gratuity’ After Official Acts is Legal, Supreme Court Rules

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The Supreme Court ruled Wednesday that politicians may accept a gratuity after making an official act, and that laws against bribery do not apply.

In the case, Snyder v. U.S., former Portage, Indiana mayor James Snyder gave Great Lakes Peterbilt two contracts with the city, purchasing five garbage trucks for $1.1 million in 2013. The following year, Peterbilt paid Synder $13,000. Though the DOJ and FBI said the payment was likely a gratuity for the contract, Snyder said the money was merely payment for his consulting services.

A federal jury disagreed, convicting him of violating a 1984 law that banned gratuities to state and local officials. The law mirrors a statute barring federal officials from taking either bribes — defined as a payment or gift before an official act — or gratuities — defined as a gift after such an act.

READ MORE: Clarence Thomas Accepted Millions in Gifts – Far More Than All Other Justices Combined

Snyder was sentenced to 21 months in prison. He appealed, arguing that the specific law only applied to bribes, not gratuities. Though the Seventh Circuit upheld the conviction, the Supreme Court reversed it, agreeing with Snyder.

The Supreme Court ruling was 6-3, along ideological lines. Justice Brett Kavanaugh wrote the Court’s opinion, arguing that though local governments may regulate the gifts public officials can accept, the federal statute does not, leaving it to the states to determine what gratuities are legal.

“Gratuities after the official act are not the same as bribes before the official act. After all, unlike gratuities, bribes can corrupt the official act—meaning that the official takes the act for private gain, not for the public good. That said, gratuities can sometimes also raise ethical and appearance concerns. For that reason, Congress, States, and local governments have long regulated gratuities to public officials,” Kavanaugh wrote, adding that “different governments draw lines in different places.”

Kavanaugh also argued that a 1986 amendment to the 1984 law updated it to mirror the prohibition against bribery only. In this particular case, Indiana state law prohibits bribery of local officials, but has no such rule on gratuities.

Justice Ketanji Brown Jackson wrote the dissent, arguing that the original law used “expansive, unqualified language.” She criticized the reading of the law that banned bribery but not gratuities.

“Snyder’s absurd and atextual reading of the statute is one only today’s Court could love,” Jackson wrote, citing that the text of the law “expressly targets officials who ‘corruptly’ solicit, accept, or agree to accept payments ‘intending to be influenced or rewarded.'”

“The Court’s reasoning elevates nonexistent federalism concerns over the plain text of this statute and is a quintessential example of the tail wagging the dog,” she added.

The decision comes in the wake of controversy over Supreme Court Justice Clarence Thomas accepting a number of gifts from billionaire Harlan Crow without declaring them until earlier this month.

 

 

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