Relevant and even prescient commentary on news, politics and the economy.

My Comments-Thread Comment to Robert Waldmann’s “From Small Town to Prison” Post

Robert Waldmann did something this morning that I’d planned to do: He posted an in-depth post about the NYT’s awesome article in yesterday’s paper titled “From Small Town to Prison,” by Josh Keller and Adam Pearce.

Robert makes a critical point about the fiscal cause of the phenomenon that the Times article reports on, and my rather lengthy comment to Robert’s post adds some things that I’d planned as the key point to my post.

Here is my comment in the Comments thread to Robert’s post:

“It is caused by prosecutorial discretion with laws which allow extremely long sentences combined with plea bargaining. If the sentence for the actual crime committed weren’t absurdly long, DAs would not be able to help their counties at the expense of the state.”

That certainly is true, but it also is caused by the complete takeover of the U.S. Supreme Court by the Conservative Legal Movement, which has removed any access to federal court in order to challenge through the habeas corpus process anything—and really, I do mean, as a practical matter, anything—that occurs in state or local court proceedings, however flagrantly violative of even basic constitutional rights.

For state-court criminal cases, these Supreme Court justices (not to be confused with justice; they’re justices, a title, nothing more) these people took an already awful federal-court jurisdictional statute that Bill Clinton cravenly signed in 1996 in order to avoid, y’know, soft-on-crime attacks during his campaign for reelection, and (very) effectively rewrote it to actually completely preclude federal habeas review of ANYTHING that transpires in ANY state or local court.

This was done in the name of states’-rights-to-violate-individual-rights-except-religion-gun-ownership-and -real-property constitutional rights. Er—I mean—in the name of FREEDOM. A.k.a., LIBERTY.

What I hadn’t realized, though, Robert is that because it’s the states that pay for state prisons, there is an incredibly strong incentive for these county DAs and judges to put everyone they can in prison, and or as long a time as is allowed—which according to the Supreme Court is as long as they want. One major achievement of the Conservative Legal Movement is that the Supreme Court has nullified the Eighth Amendment’s prohibition against cruel and unusual punishment.

A 12-year sentence for selling a handful of narcotic prescription painkillers, admittedly highly addictive drugs, is both cruel and (happily) unusual, and should be challenged as violating the Eighth Amendment. But under Supreme Court precedent from the current crowd+Antonin Scalia the lower federal courts probably would reject the argument.

I’m so glad you posted this post, Robert. I read the Times article yesterday and planned to include it in a post I plan to write soon whose main subject is my anger about the push by some progressive senators* and by some other progressives to get the Senate to confirm Merrick Garland to fill Scalia’s seat. This is beyond misguided. And it makes no sense.

The big, big progressive complaint about Garland is that he is pro-law enforcement, and especially pro prosecutor—and not all that concerned about such matters as specific constitutional rights such as Fourth Amendment search-and-seizure limitations and, well, other things. But Garland is, I guess, progressive on the kinds of things that corporate conservatives and culture-wars conservatives care about. In other words, he’s fine for conservatives on law-and-order stuff that is politically passe even among most Republicans, but is from the perspective of the Republican donor base and culture-wars base he’s not fine. So why push this guy? Why the hell was he even nominated, in the first place?

(Okay, he was nominated because Obama, like so many other political types, thinks it’s still 1988. But actually it’s not still 1988.)

There are more than a fair share of former prosecutors and other former government lawyers on the Supreme Court and the lower federal benches. There are almost no former criminal defense lawyers and civil rights lawyers on the federal bench at any level, and it’s been, like, forever since there’s been on the Supreme Court unless you count Ginsburg’s Women’s Issues legal background. It’s really, really, REALLY time for one. Or, hey, even two!

Hillary Clinton owes her nomination to African-Americans, and she may well owe her election to them. At a minimum, she’ll owe her large margin of victory to them, if it materializes. So I’ve been wondering: Who will be her first Supreme Court nominee? And her second one?

Everything about Hillary Clinton suggests that if she decides to pay attention to Blacks in her Court selections, she’ll go with appointing a second Black to the Court. I mean, hey—another first! Which she will conflate with, Hey! Someone who will actually matter to a significant numbers of African-Americans in what he or she DOES on the Court.

Which is not to say that that there are no African-Americans who would be terrific for the position; one I know of is an Obama appointee to the Fourth Circuit Court of Appeals, based in Richmond, VA. Or I should say, that’s my impression, although I don’t know all that much about him. But Clinton likely will just operate on the assumption that the specifics of the nominee don’t matter, other than the specifics of race.

My strong, strong preference would be Jeffrey L. Fisher, who was highlighted in one of NYT Supreme Court correspondent Adam Liptak’s occasional Sidebar articles last month titled “Criminal Defendants Sometimes ‘Left Behind’ at Supreme Court, Study Shows.”

And to replace Ginsburg when she retires next July, the drop-dead awesome Vanita Gupta, Obama’s current Justice Dept. Civil Rights Division chief. (Kudos, Mr. President!) Gupta would be the first Asian-American on the Court, which means Clinton actually might appoint her! She won’t appoint Fisher, although there’s no one in the country who could come close to having the impact that Fisher would have on the Court because of his victories at the Court in gaining Scalia’s vote on some major constitutional-criminal-law issues.

Anyway … I’ve inserted into your post a link to the Times article, and corrected a typo (“2006”, rather than “206”). Your posts get a lot of readers, and I hope this one will be no exception even though it’s not on economics, except of course indirectly.

And I want to add this: I would love to see Pence asked about this at his debate with Kaine. And if he’s not asked about it by the moderator, Kaine should raise the point.

Okay, so I guess I’ve now posted that post I’ve been planning to post about progressives trying to push through Garland’s confirmation.  Good; one more thing I can check off my to-do list.

Oh. The title I’d planned for it: “The Really Awful Advice That Some Dem Senators Are Giving to Clinton.” They want her to announce now that she will renominate Garland to the Court–the idea I guess being that the Republican senators might as well confirm him now, although I have no idea why, since she’d be promising to nominate him rather than a young liberal. Garland is in his mid 60s.

Even more bizarre than that argument, Harry Reid also advised Clinton** that she should renominate Garland even if she doesn’t promise, pre-election or pre-inauguration, to do so, because, they say, she’ll be too busy in the first few months of her term to have someone new vetted and then have her administration shepherd the nomination through the Senate.

Seriously; that’s what that article about this that I linked to above  says.* The theory being that the new administration won’t be able to chew gum and walk backward at the same time, and Supreme Court appointments aren’t important.

So there we have it. Some Senate Democrats’ advice to Clinton is to throw away a Supreme Court appointment because it’s just easier that way.

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NOTE: The last five paragraphs were added after original post was posted. 9/3 at 4:20 p.m.

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UPDATE: Reader Nihil Obstet posted this comment in the Comments thread:

One of the great successes of the elite is to weaponize the Supreme Court nomination process by limiting it to culture war issues. We have to vote for our party’s candidate because of abortion, affirmative action, religious freedom, gun regulation, and sexual orientation. Both Democratic and Republican politicians are very happy with those issues. When I’m told that the election is all about the Supreme Court appointment, my reaction is, “You’re not helping your cause by saying that it’s crucial to get more Merrick Garlands on the court.”

I’m not seeing any focus among progressives about the need to reverse the erosion of personal rights with regard to the power of the state and of the corporations.

I responded: Exactly.

Added 9/3 at 4:44 m.

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* Link corrected. 9/3 at 4:56 p.m.

** I erroneously said originally that “these senators” advised this.  But it was only Harry Reid who did, according to the article.  Apologies to Dick Durbin, Chris Coons and Chuck Schumer, the other senators the article mentions.  Also: Durbin apparently is playing a role in this because he is minority whip.  He’s one of my favorite senators, and so I’m a bit disappointed, but I guess he feels that as whip he has to participate in pushing for Garland’s confirmation. 9/3 at 5:08 p.m.

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Insider trading and the Supreme Court

Via NYT comes comment on a future Supreme Court case:

There are longstanding differences between Boston and New York, like the rivalry between the Red Sox and the Yankees. Adding a new one, the federal appeals courts in each city have taken different approaches to the type of benefit a tipper must receive in exchange for inside information to make trading on it a violation of the securities laws.

The Supreme Court will decide what type of benefit must be provided to prove a quid pro quo arrangement, and it could take insider trading law in a new direction.

You need to read the whole thing to get a sense of how these cases are pursued.

Lifted from an e-mail is Beverly Mann’s response to my query:

In a way, this reminds me of the issue the Court decided to decide in in the Bob McDonnell case, about whether what the McDonnells performed in exchange for all the loans and gifts their buddy gave them was official action rather than just helping out a constituent.

This isn’t my area of expertise, by any stretch, though, and that Dealbook article is really thorough. I remember the uproar when the Second Circuit reversed the conviction in the Newman case, discussed in the article, and the Court decision in the case they’ll hear next term definitely will be important. Most of the justices are sympathetic to these kinds of white collar criminal defendants, I think, and so I would expect a reversal of the conviction, but how they will change the law in order to do it is anyone’s guess, judging from the article.

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You read it here first, AB readers. … [Important addendum added.]

I scooped everyone!

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ADDENDUM: I would note that Ruth Bader Ginsburg will turn 83 on March 15 and that, while clearly still mentally very sharp, does not appear to be in good physical health.  There’s been a lot of speculation that if the Dem nominee, very likely now Hillary Clinton, wins the general election, and the Republicans retain control of the Senate (very unlikely, in my opinion, but probably not in theirs), they will continue to refuse to allow hearings on a Supreme Court nominee to fill Scalia’s seat.

I (strongly) suspect that the Republican idea is that Ginsburg will leave the Court fairly early into the next administration because of physical disability or death, and that the two overtly political cases currently before the Court, whose clear purpose is simply to skew elections to Republicans—and which now are deadlocked 4-4, and which the Court, rather than affirming by deadlock in a non-precedential ruling the lower appellate courts’ ruling not in favor of the Republican Party’s bald political interests, will instead be reargued next term.  Voila! Precedential opinions, by a 4-3 vote, profoundly skewing elections to favor the Republican Party.

The Federalist Society has gamed this out.  Trust me.

Meanwhile, the wingnut “legal foundations” that represent the petitioners in those two cases and that regularly fabricate cases for the Supreme Court to employ by a one-vote margin as their quiet-coup mechanism, will be working overtime (no, I mean even more so than usual) cooking up other cases on the wingy to-do list.

They know that this is not sustainable forever.  But they think it is sustainable long enough for them to accomplish their top priorities.

The Dem presidential candidates should talk about this.  I call this the Republicans’ wing-and-a-prayer strategy.  The Dem candidates, and Obama as well, should call it this, too.

They also should call it this: an attempt to orchestrate a silent coup.  I’ve been wondering whether issues other than the damn culture-wars ones that are at issue in Supreme Court appointments will ever get any attention from the Dem candidates.

I don’t think Clinton has the intellectual capacity to discuss, or the interest in discussing, anything but the culture-wars issues when mentioning the importance of Supreme Court appointments.  And Sanders, unlike Clinton, has no background in law.  But he should get information about both of the current Supreme Court cases I am referring to–Evenwell v. Abbott and Friedrichs v. California Teachers Assoc.–from people who know quite a bit about them.  And then he should discuss these.  These are the very types of things that his candidacy is about.

Added 3/3 at 12:15 p.m.

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R’s Supreme Court Boycott & Trump: How is That Going to Work Out for Them?

What if it is Trump? Or Trump vs. Clinton? Or Trump vs. Clinton vs. Bloomberg? What’s the end game for the McConnell-Grassley Triple No Strategy on the Court?

Can they really rely on a President Trump or a President Bloomberg actually going with a Scalia Federalist Society Originalist type? Are the really willing to go All IN on President Rubio?

Got more questions than answers. In fact no firm answers so far. But Ted has one week to put this election into Cruz Control, because if he is in second or third place trying to get around the fat ass of the Trumpmobile come next Wednesday at this time he is in the slow lane to nowhere. And Rubio is trying to make a play as being the most warlike warlock of the Neo-Cons even while being No Exception on Abortion while claiming the ‘moderate’ ‘sensible’ ‘main street’ lane to nativist populist Trump.

Yet the Federalist Society types are going all in with the bet they get better Court results with appointees in 2017 than with Obama in 2016. Seems to me they should have waited to get beyond Super Tuesday before they bet the future of the Court for the next couple of decades.

Open Thread on Nevada, Trump, the Supreme Court

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Integral and Indispensable to the regular duties, Your govenment says this defines if you get paid

Update below.

From a Salon interview with  Catherine Ruckelshaus, general counsel and program director for the National Employment Law Project comes this case being argued today in the Supreme’s Court: Integrity Staffing Solutions, Inc. v. Busk

We tend not to hear much about Supreme Court cases until there’s an imminent ruling, much less before oral arguments have begun. So could you give me a quick overview of the case?

Sure. This is a case that’s been brought by Amazon warehouse workers who were working in a warehouse in Nevada and who at the end of their shift every day were required to go through an anti-theft screening in the warehouse that took workers as much as 25 or more minutes to get through.

So the workers brought a lawsuit against the staffing company that Amazon has [contracted] to recruit and hire the workers, it’s called Integrity Staffing [Solutions], and sued to try to get paid for the time they stood in line at the end of their shifts The [United States Court of Appeals for the Ninth Circuit] said the workers should get paid for that time, and the employer appealed and the Supreme Court has now taken the case.

The argument for the workers seems pretty intuitive to me; if you’re doing something because of your employer’s demand, you should, within reason, be compensated for your time. What’s Integrity’s argument in response?

The employer and, surprisingly, the government are saying that because the duties are not “integral and indispensable” to the regular duties that the workers are performing, the work isn’t compensable. So they’re trying to carve out of any duties that workers would perform whether or not it’s at the direction of the employer — or for the benefit of the employer — if they’re not “integral and indispensable” then you don’t have to get paid for it.

Are you getting this?  Do you get this line of argument?  This is a perfect, dictionary ready example of just what is wrong with our legal system.  That anyone can possibly look at the employer/employee relationship and consider a line of reasoning that parses out that relationship such that the legal concept of the “common man” understanding is no longer a valid legal principle just shows how little if there is any regard for the concept of the rule of law is present today.

But worse is that We the People, or at least those who are acting as stand ins for us have decided that the proper position, the one We the People would choose if voted on is the one that states an employer can pay you or not depending on just how close to the assembly line you are for the present activity you are doing.

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Turns out Alito isn’t the only justice who conflates the Securities Exchange Act with state-law corporate-structure statutes. Roberts does, too! (Unless, that is, racial-minority-owned corporations are denied access to restaurants and hotels when traveling. Or something.)

Roberts suggested that he believes Hobby Lobby and Conestoga Wood can bring forth claims of religious freedom, saying courts have held that “corporations can bring racial discrimination claims as corporations” and that “those cases involve construction of the term ‘person.'”

John Roberts Offers Conservatives A Way Out Of Birth Control Dilemma, Sahil Kapur, TPM, yesterday

Late Tuesday afternoon, after I’d read two or three early reports on the argument at the Supreme Court that morning in the Hobby Lobby and Conestoga Wood cases, I posted a piece here titled:

“My early take on the ACA-contraception-mandate-case argument: Alito conflates the Securities Exchange Act with state-law corporate-structure statutes (yikes); Kennedy really, really wants to give corporations the full complement of human constitutional rights; and Scalia really, really needs to limit this ruling to an interpretation of the Religious Freedom Restoration Act.”

That post harked back to one I’d posted the day before about what to look for in the upcoming argument.  What to look for, I said? Mainly whether “the court will back away somewhat from its Citizens United claim that corporate CEOs can, in the name of the corporation, access the constitutional rights of citizen-association members.”  I predicted that it would–that the Court “will find some way to segregate speech rights from other constitutional rights, and will rule against the plaintiffs in these two cases.” I wrote:

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What to look for in tomorrow’s Supreme Court arguments in the Hobby Lobby/Conestoga Wood ACA-contraception-coverage cases

[The] conception of corporate personhood has profound and beneficial economic consequences. It means that the obligations the law imposes on the corporation, such as liability for harms caused by the firm’s operations, are not generally extended to the shareholders. Limited liability protects the owners’ personal assets, which ordinarily can’t be taken to pay the debts of the corporation. This creates incentives for investment, promotes entrepreneurial activity, and encourages corporate managers to take the risks necessary for growth and innovation. That’s why the Supreme Court, in business cases, has held that “incorporation’s basic purpose is to create a legally distinct entity, with legal rights, obligations, powers, and privileges different from those of the natural individuals who created it, who own it, or whom it employs.”

In recent constitutional law cases, however, the justices seem to have forgotten this basic principle of corporate law. In Citizens United, the court effectively held that corporations enjoyed the same free speech rights as ordinary individuals. Contrary to popular belief, however, the court did not base that holding on the idea that corporations are people. Instead, the justices said that corporations are “associations of citizens”—and those citizens who make up the corporation have constitutional rights.

Yes, Corporations Are People. And that’s why Hobby Lobby should lose at the Supreme Court., Adam Winkler, Slate, Mar. 17

Among the inundation of articles about Sebelius v. Hobby Lobby Stores, Inc.  and Conestoga Wood Specialties Corp. v. Sebelius in the months since the Supreme Court agreed to hear these cases–one, Hobby Lobby, in which the corporation won in the lower appellate court, the other, Conestoga Wood, in which the corporation lost–there are very among the ones I’ve read that make what I think is the critical point about these cases: the critical interplay between the Citizens United opinion and these two cases, and the reason why. It’s a point I made (or tried to) in a post on AB last fall, but Winkler is a constitutional law prof. at UCLA and, according to his mini-bio at the end of his slate article, he’s writing a book about the constitutional rights of corporations, so I was happy to read the paragraphs I quote above in an article published on a mainstream-media website.

For all the jokes about corporations attending church or being bar mitzvahed–yes, I plead guilty, but writing that post was so much fun!–the fact is that the corporations in those cases claim not that they are people but instead that they derive their First Amendment right to the free exercise of religion not from the state’s grant of corporate status but rather from the constitutional rights of its shareholders.  This argument–that corporations’ constitutional rights are derivative of their shareholders’ constitutional rights and therefore are not limited to, say, protecting the property that the corporation itself owns or to the ability to enter into business contracts on behalf of itself–comes courtesy of Citizens United, pure and simple.  Hobby Lobby and Conestoga Wood, unlike Citizens United, are for-profit corporations.  They both also are closely held, rather than publicly traded, corporations, and in both cases, the shareholders (members of a single family, in each case) are parties to the lawsuit along with the corporations themselves.

Mitt Romney’s ill-fated pronouncement that corporations are people, my friend, was funny, but it actually was an inarticulate adoption of Citizens United’s actual declaration: that corporations are “associations of citizens” whose members, as human individuals, have the familiar panoply of constitutional rights. One obvious problem with this derivative-constitutional-rights thing, though–albeit a problem that the Citizens United majority didn’t acknowledge–is that the individual shareholders of at least publicly-traded corporations don’t all hold the same political views.  Some shareholders are shareholders by virtue of participation in  large mutual funds, and others by dint of ownership in pension funds.  Some of them even in public-union pension funds!

Then again, at a recent oral argument at the Court in a case that, although it’s not an ACA  or religion case, I believe has implications for these two cases, Samuel Alito suggested that public unions are unconstitutional as a violation of … something. (Of his political views, I think.) If he prevails on this when that case, Harris v. Quinn, is decided, that would eliminate the problem of Democrats who are contributors to public union pension funds having Republican CEOs of mega-corporations serve as proxies to derivatively exercise the pension-fund contributor’s First Amendment speech rights. But the fact will remain that Democrats–who, contrary to Fox News reports, are people, my friend–have been known to own stock in large corporations, directly or through mutual funds or pension funds or some such.*

A seminal part of Citizens United, in other words, is its conflation of the CEO’s constitutional rights with those of the corporation’s–er, association’s–other citizens. The corporation itself may not be a person, my friend, but it derives its First Amendment rights from one (only one) of its citizen members.  Or, at least, only that one member serves as proxy on the derivative rights. (If the CEO is not a citizen, he or she can still serve as proxy for human members who are.) But what the plaintiffs are arguing in Hobby Lobby and Conestoga Wood is that these corporations derive their constitutional rights from all of these associations’ members: the family members who comprise the entire membership of this association of people.

The title of the Winkler article says that corporations are people.  By which he means, they are indeed associations of citizens.  Associations of citizens (and, probably, non-citizens) that, for purposes of healthcare insurance coverage, include the corporation’s employees. What Citizens United means in saying that corporations are associations of citizens is that the shareholders comprise an association of citizens whose proxy, for constitutional-rights purposes, is (apparently) its CEO.  But Citizens United did not address whether this association of citizens is necessarily limited to shareholders.  If corporations have constitutional rights derived from its individual members because they are associations of citizens, and if the association of citizens includes, by definition, employees as well as shareholders (no green-card holders or foreign shareholders allowed!)–and under Citizens United, there is no reason why it shouldn’t–then the act of incorporation itself confers derivatively to the corporation the constitutional rights of its employees.  Who have the constitutional right to have the same benefits of the ACA as similarly situated employees of other corporations.

Okay, my eve-of-oral-argument hunch is that the court will back away somewhat from its Citizens United claim that corporate CEOs can, in the name of the corporation, access the constitutional rights of citizen-association members.  The Court will find some way to segregate speech rights from other constitutional rights, and will rule against the plaintiffs in these two cases.  That’s because, well, apparently a slew of other associations of citizens–e.g., the business community at large–are making it known, including in amicus briefs to the court, that they’re downright scared to death of this end-to-the-corporate-veil/corporations-are-groups-of-citizens (who can be held individually responsible for their for-profit association’s liabilities) thing.

Or maybe they’re just scared to death at the thought of ExxonMobil or Amazon marauding through their towns bearing AK-47s in exercise of their derivative Second Amendment rights. It could be time for some for-profit associations of citizens to pray.

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*Paragraph edited after publication to correct a cut-and-paste error and to add the name of the referenced Supreme Court case, Harris v. Quinn.

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What the Marvin M. Brandt Case Means for America’s Rail-Trails

I’m a big fan of the Rails-to-Trails Conservancy, and was well aware of the Supreme Court case, Marvin M. Brandt Revocable Trust v. United States, argued two months ago at the Supreme Court, that had the potential to endanger or end large swaths of Conservancy trails.  The Court issued its opinion in the case last week.

I’m on the Conservancy’s email listserve, and received an email this morning that links to the organization’s summary of the opinion and effects, after a week of reflection and analysis of it. Here’s the Conservancy’s take, at this juncture.

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Alito is Right. Perceptions of the U.S. Supreme Court Differ From the Reality.

WEST PALM BEACH – Using a mix of jokes and drawing on his own experience, U.S. Supreme Court Associate Justice Samuel Alito said Monday that being a judge at the nation’s top court is often not what it appears to be.

“A lot of people, I think, have the impression that sitting on the bench and listening to oral arguments is the main thing we do,” Alito said to a crowd of 1,120 at the Palm Beach County Convention Center.

“If people were to see me really at work, it would not be a particularly edifying spectacle,” added the 63-year-old New Jersey native. “They would see me at my computer at eight in the morning in my pajamas.”

Perceptions of U.S. Supreme Court differ from reality, Justice Samuel Alito says in West Palm Beach, Brett Clarkson, Sun Sentinel

Hmmm.  And to think I thought that the justices spent most of their time reading those specially-printed-and-bound-at-a-cost-of-$5,000-to-$7,000-per-case certiorari petitions.  At least the ones whose covers bear the name of $1,000’Hr.-D.C.-Based-Supreme-Court-Specialist as counsel.  Or the ones filed by state attorneys-general challenging federal-court grants of habeas petitions.

Guess the justices have some time left over to do other things, like prepare for oral argument in cases whose petition covers bore the name of $1,000/Hr.-D.C.-Based-Supreme-Court-Specialist as counsel. Or like signing on to opinions that summarily reverse federal-court grants of habeas petitions at the behest of state attorneys-general.

This week while he’s in his pajamas at a luxury hotel in Palm Beach.  Maybe next week, too.  The justices don’t meet again for another two-and-one-half weeks.

Yes, perceptions of the U.S. Supreme Court differ from the reality.

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