SCOTUS, the Supreme Not-A-Court Dilemma

I am not an attorney; although, I have been in all levels of state and federal courts including Certs to SCOTUS. I had to learn by default to get my points across at times. Neither am I to be trifled with if you choose to make BS statements.

I found this SCOTUS article to be interesting as I am seeing similar as an average citizen sitting on the sidelines wondering what plague has infected the courts. Judge Aileen Cannon is a knowledgeable person who I believe has been taken over by an alien (pod people?). She knows she is wrong. The same holds true for Alito, Thomas, and Gorsuch. Barrett has sided with the other women recently which I believe is a good sign.

Kavanaugh is suddenly enamored with state legislators having greater control of election policies. This could include redistricting with less judicial interference. North Carolina Republicans were stopped from using an electoral map they drew that a lower court invalidated for unlawfully disadvantaging Democrats.

It was a short-term setback for the North Carolina Republicans They may soon get a chance to claim a bigger legal victory. Conservative Justice Brett Kavanaugh suggested at the time justices take up the underlying legal dispute. One providing state legislators around the country the ability to enact election policies with less judicial oversight – a Republican goal.

Roberts has failed in his persuasion tactics and needs to take a commanding lead. If not, then side with Kagan, etc.

Your thoughts may differ. However, this is a good read on SCOTUS.


Justice “Elena Kagan and the Supreme ‘Not-A-Court’,(, Andrew Koppelman, John Paul Stevens Professor of Law at Northwestern University

The Supreme Court is supposed to decide questions based on the law, not public opinion. And you can hear Justice Roberts pontificating on this topic. Roberts:

“You don’t want the political branches telling you what the law is. And you don’t want public opinion to be the guide of what the appropriate decision is.”

and laughingly adds;

“Yes, all of our opinions are open to criticism.

This is not what is occurring. Valid precedent going back years (Roe v Wade, etc,) is being ignored for decisions based upon political interests favoring certain constituents,

If you have not noticed, Justice Kagan and Chief Justice Roberts have been having a public discussion on this topic. A discussion about whether the Court is jeopardizing its legitimacy for reasons going beyond mere disagreement on the decision results.

Kagan explained her concerns about legitimacy legitimate. However, the explanation was diplomatically worded and abstract. As the author cites, it is easier to understand her if the focus is on one example.

Consider a case described thusly.

“Coach Joseph Kennedy lost his job as a high school football coach because he knelt at midfield after games to offer a quiet prayer of thanks.” The court (SCOTUS) declared his rights had been violated and directed the trial court to order his reinstatement. It also took the opportunity to upend some major rules of establishment clause law, notably relaxing the rule against teacher-led school prayer.

Everything in the quoted sentence was false.

The Court knew or should have known it was false. Coach Joseph Kennedy did not lose his job. The coach was  offered an “accommodation allowing him to pray after games away from his players.” He rejected the offer and was then put on paid leave.

When Joseph coaching contract expired in the spring, he “did not reapply to coach the following year.” The Coach did not “pray quietly by himself” on the field afterwards. Instead, he was surrounded himself with a crowd he had brought there. He pressured his players to join him, leading some parents to complain.

Briefly, that is some of the background. Now the court.

The Court’s decisions and positions on a range of issues appears to increasingly mirror the average Republican voter’s thoughts. At the same time, the public’s confidence in the Court has plunged. And plunged to the lowest point in the history of polling. Roberts was responding to this when he said;

“simply because people disagree with an opinion is not a basis for criticizing the legitimacy of the court.”

It was expected at one time, Roberts would be the balance within the court. With Roe v Wade, he lacked the power to be such which will not be forgotten. The strategy of Robert’s prevailing in such a decision was meant to delay a further repeal of Roe v Wade till later. Delay the full repeal until little could be done by the opposition. Now, the failure of his leadership of the court may have political consequences (Republicans) for the 2022 election.

For Joseph Kennedy (his attorney):

Former Solicitor General Paul Clement misrepresented the facts when he stated, at the very beginning of his argument;

“The record is clear that Coach Kennedy was fired for that midfield prayer.”

Justice Samuel Alito repeated Clement’s claim six times afterwards. Until, the school’s lawyer corrected him:

“It’s not a question of firing, and in fact, he was put on paid leave.”

In other words, there was “no” firing. The court still allowed Clements statement to stand. At this point you have to wonder (as the school attorney) is the court suffering from hearing loss?

The school district claimed the case was moot. Joseph Kennedy left town and relocated to Florida. Kennedy (Clement) responded he had moved temporarily for family reasons.  Coach Kennedy:

“If the U.S. Supreme Court were to grant me the only relief I have ever sought from the beginning – to be able to return to the sidelines as a football coach at Bremerton High School – I would be back in Bremerton as soon as a plane could take me there.”

Kennedy’s claim was false as well. The school district complied with the Supreme Court’s command by offering him the contract renewal for which he had not applied. A spokesperson for the school said,

“He’s had the paperwork for his reinstatement since August 8, and we haven’t gotten so much as a phone call.” 

Instead, Coach Kennedy became a sort of professional martyr, traveling around the country telling conservative Christian groups how he has been persecuted.

Speaking at Northwestern Law School (the article author teaches there), Justice Kagan explained (again, in very general terms);“ acting like a court” requires three things above all else:

The First is the court abides by precedent, except in unusual circumstances. . . . If new members of the court come in, and all of a sudden everything is up for grabs. All of a sudden very fundamental principles of law are being overthrown or are being replaced. Then people have a right to say, ‘What’s going on there? That doesn’t seem very law-like.’” 

The Second is “to have methodologies constraining you and to apply those methodologies consistently.”

The Third is “not to do what’s more than you have to.” Otherwise, the Court “just looks like it is spoiling for trouble.”

Elena Kagan did not name specific cases, though it is easy to think of examples. The new revelations show the Kennedy case exhibits all three of the vices she describes. 

One of the most fundamental legal methodologies is the law of standing, which all the judges in the Kennedy majority recently insisted upon: A court shouldn’t decide a case unless there is some real controversy, not a fake dispute invented in order to get a court to make a legal pronouncement. 

Kennedy’s grievance was he hadn’t been rehired for a job for which he never applied. And the Court knew. Yet, it ignored the evidence showing he was distorting the facts of his case.

Precedent was trashed; normal rules were ignored; the Court reached out to make pronouncements far broader than even its mistaken account of the facts were true. And the Kennedy case is part of a much larger program of distorting the law of religious liberty.

Roberts is right, American democracy depends on respect for courts. But the courts have to act like courts. This Supreme Court is something else: a wielder of power that is increasingly constrained by nothing. Perhaps we should call it the Supreme Not-A-Court.

By the way, don’t sleep next to a pod.

Justice “Elena Kagan and the Supreme ‘Not-A-Court’,(, Andrew Koppelman, John Paul Stevens Professor of Law at Northwestern University

A Liars Guide to Becoming a SCOTUS Justice” – Angry Bear (

Kennedy v. Bremerton School District,” SCOTUSblog,

The Supreme Court’s “praying coach” decision rests on a bed of lies,” Vox, Ian Millhiser

Answering John Roberts Beliefs of Innocence – Angry Bear (