#5th circuit

[dreaminginthedeepsouth]

Trump sycophants parroting attacks on justice system risk further provoking MAGA extremists

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Defending the Judiciary in 2024

May 17, 2024

ROBERT B. HUBBELL

Events on Thursday highlighted yet another reason Democrats must vote in record numbers in November to defeat MAGA extremism. Republicans are undermining the institution of the judiciary in every way imaginable. Eroding the legitimacy and authority of the courts is textbook fascism. Indeed, in fascist states, courts are co-opted or replaced, becoming instruments of totalitarian rule.

Every American should be concerned about the coordinated assault on the judiciary by MAGA extremists.

It is difficult to identify Thursday’s most egregious attack on the legitimacy of the courts, but it seems appropriate to begin with Justice Samuel Alito.

Justice Alito displays a “Stop the Steal” flag on his front lawn.

As a Supreme Court justice, Alito has been unapologetic in his efforts to defend Trump's lawlessness. He has risen to Trump's defense with gleeful spite and unveiled resentment against those seeking to hold Trump accountable under the Constitution.

On Thursday, the New York Times revealed that Alito’s home displayed an upside-down US flag during the fraught days after the January 6 insurrection. At the time, flying the US flag upside down was a symbol calling to “Stop the Steal” of the 2020 election from Trump. It was a call to insurrection—proudly displayed by a US Supreme Court justice sworn to defend and protect the Constitution. See New York Times, At Justice Alito’s House, a ‘Stop the Steal’ Symbol on Display. (This article is accessible to all.)

In response to an inquiry from the Times, Alito said,

I had no involvement whatsoever in the flying of the flag.

Notably, Alito did not deny the veracity of the photograph of the flag flying upside down on his lawn. He did not deny the symbolism of the upside-down flag. He did not deny that he was aware of its continued presence in front of his house. Instead, he blamed his wife, whom he claimed flew the “Stop the Steal” banner in response to anti-Trump signs in the neighborhood.

Alito’s response to the Times is a lie. He owns the flag. He owns the flagpole. He owns the property on which the flag was displayed. He permitted it to remain on display on his property. He, therefore, did have “involvement” in “flying the flag.” It does not matter that it was his wife who physically raised the “Stop the Steal” banner on the flagpole. Alito’s hair-splitting denial is misleading and incomplete—and therefore false.

All of this leaves us with a second justice on the Supreme Court whose spouse was a booster of the effort to overthrow the Constitution and prevent the peaceful transfer of power.

Those justices—Alito and Thomas—are currently considering Trump's presidential immunity defense to the indictment alleging that Trump attempted to subvert the election. Under any reasonable reading of Code of Conduct that applies to Supreme Court justices, Alito and Thomas should have recused themselves long ago (under Canons 2 and 3).

The fact that Alito and Thomas have failed to do so is an open wound on the Court, oozing pus and bile every time they take the bench in a matter involving Trump's coup and insurrection.

Ultimately, the feckless Chief Justice John Roberts is to blame. He has allowed a sprawling and continuing scandal to consume the dwindling legitimacy of the Court. He has allowed that scandal to fester in order to provide cover for the most corrupt president in our nation’s history—which is a fitting epitaph for Roberts’ squandered legacy.

Texas Governor Abbott nullifies jury’s conviction of racist who killed Black Lives Matter protestor.

In the aftermath of the murder of George Floyd, Daniel Perry shot and killed a protester who was carrying a gun (which is legal in Texas). A jury heard the evidence—including Perry’s claim of self-defense—and convicted Perry of murder. Perry was sentenced to 25 years in prison. After the verdict, Texas Governor Greg Abbott said he wanted to pardon Perry.

On Thursday, the Texas pardon board gave Abbott the recommendation to pardon Perry. Abbott issued an immediate pardon, and Perry is now back on the street—with his right to carry firearms restored. See Texas Gov. Greg Abbott pardons Daniel Perry, Army sergeant convicted of murdering protester in 2020 (nbcnews.com).

In pardoning Perry, Abbott issued a statement that denigrated the jury’s verdict and consideration of the evidence of self-defense. Abbott wrote,

Texas has one of the strongest ‘Stand Your Ground’ laws of self-defense that cannot be nullified by a jury . . . .

 When a jury hears the evidence and concludes “beyond a reasonable doubt” that the defendant is guilty, notwithstanding claimed self-defense, that verdict is not a “nullification” of the law; it is the application of the law. But in Abbot’s MAGA extremist administration, jury verdicts that run contrary to MAGA orthodoxy can be disregarded.

Overriding the justice system to advance partisan political ends is dangerous. If some Texans believe that the law does not apply to them, they will act lawlessly—exactly as Daniel Perry did when he shot a protester who was trying to make the point that Black lives matter to the same degree as white lives. Today, Governor Greg Abbott told Texans that is not true in Texas—and he did so by attacking the integrity of the jury trial system. The message and the means are antithetical to democracy.

New parade of GOP representatives appears at Trump trial

The “red tie” brigade was back in force at the Trump trial in Manhattan. About a dozen Republicans (mostly from Congress) appeared outside the courtroom to bash Judge Merchan, his family, and prosecutors. They filed into the courtroom as a phalanx, interrupting the cross-examination of Michael Cohen.

Why was Thursday’s spectacle worse than those on previous days? Because those who rose to show their support for Trump included Trump's indicted co-conspirator, Jeffrey Clark, as well as outcasts of the Freedom Caucus Lauren Boebert and Matt Gaetz.

In a particularly appalling statement, Gaetz posted a picture of Thursday’s parade of GOP officials at the trial alongside the caption, “Standing back and standing by, Mr. President.”

To be clear, Gaetz’s statement is a threat of violence against the judiciary if Trump is convicted. There is no other reasonable interpretation of the picture and caption in the context of the statements made outside the courtroom. See HuffPo, Matt Gaetz Parrots Trump’s Call To Proud Boys At His Trial.

The continued spectacle by Republican lawmakers is a clear violation of the gag order. The government officials are escorted into the courtroom and seated in seats reserved for Trump's defense team. As visible members of Trump's defense team, their statements are made on behalf of Trump. Judge Merchan should find Trump in contempt for those statements and order Trump to be detained. The failure of Judge Merchan to do so further undermines the authority of the judicial system.

While I am not criticizing Judge Merchan, it is clear that the willingness of Republican officials to break every norm of the rule of law has overwhelmed the ability of the judge to enforce the rules against Trump. And with the overlay of Gaetz’s threat of violence, Judge Merchan’s reluctance to apply the rule of law to Trump is understandable—though disappointing.

Here's my point: Thursday brought to the fore multiple examples of the MAGA effort to undermine the judiciary in the US. The only way to stop the attacks is to defeat Republicans up and down the ballot. The 2024 election is important for many reasons, not merely because we will re-elect Joe Biden. We must reverse the retrograde, reactionary MAGA movement to destroy one of the most important guardrails in democracy—a fair and independent judiciary.

Justice Alito dissents in case that would have triggered a Great Depression

On Thursday, the Supreme Court upheld the Consumer Financial Protection Bureau (CFPB). In so holding, seven justices rejected a theory that would have declared two-thirds of federal funding unconstitutional and eliminated regulations that control the banking and financial markets. The banking industry was so alarmed that it begged the justices to save the CFPB and the regulations that instruct the industry on how to conduct business lawfully. See Ian Millhiser in Vox, The Supreme Court decides not to trigger a second Great Depression.

The case is notable because it represents another defeat for the rogue judges on the reactionary Fifth Circuit who are hellbent on destroying the federal system of regulation that is responsible for the orderly operation of the world’s largest economy. See Mark Joseph Stern in Slate, Supreme Court CFPB: The judicial arsonists went too far for the conservative justices this time.

But justices Alito and Gorsuch dissented, arguing that Congress must continually re-authorize and fund federal programs that are permanent fixtures of the American system of regulation. As Mark Joseph Stern notes, Alito cited to English history under King James to bolster his contention that the Supreme Court can strike down congressional appropriations:

To side with the 5th Circuit, Alito had to fixate on a somewhat random period of English history in the 17th century—from James I to Charles I—to assert that the Constitution empowers courts to strike down appropriations that they dislike.

Alito and Gorsuch are dangerous radicals whose voices must be overwhelmed by expanding the Court.

[Robert B. Hubbell Newsletter]

[fspgrad]

Way Too Close: Insane SCOTUS Case Could've Sunk The Country | Mark Josep...

This is worth listening to conclusion.

[empiricalscotus]

SEC v. Jarkesy: Another 5th Circuit Decision under Supreme Court Scrutiny

The Supreme Court recently sided with the Consumer Finance Protection Bureau (CFPB) in a case that many presumed would upend a major agency if it had gone the other way. I wrote an article a few months ago about how the Supreme Court is paying a lot of attention to 5th circuit decisions. The outcome of CFPB case was one where my intuition was validated. The CFPB case was not the only 5th Circuit…

[nationallawreview]

Update on FTC Noncompete Ban: Court Challenges Begin

On April ­­23 we reported on the Federal Trade Commission’s vote to ban almost all non-competition agreements in the United States. Within hours of that vote, Ryan LLC, a global tax consulting firm headquartered in Dallas, filed a lawsuit in the U.S. District Court for the Northern District of Texas challenging the FTC’s authority to issue such a rule. The U.S. Chamber of Commerce has been…

[william-r-melich]

Shame on the Appeals Court - 03/20/2024

Late yesterday, the 5th Circuit Federal Appeals Court blocked Texas with a temporary injunction from enforcing their SB4 law which would allow Texas to arrest and deport migrants who enter their state illegally. Earlier yesterday, the SCOTUS (Supreme Court of the United States) issued an emergency appeal to remove a previous stay that was blocking SB4, a huge win for Texas. I didn't know that a Supreme Court appeal could be blocked by a lower Federal Court of Appeals, and they did so in the same day, crazy. So, Texas went from celebrating a victory for border security, to going back to being angrily frustrated at not being able to stop the stampede of illegal crossings. The 5ht circuit is entertaining arguments today on whether to stay the injunction, pending the outcome of an appeal at the SCOTUS.

“A majority of the panel has concluded that the administrative stay entered by a motions panel on March 2, 2024, should be lifted,” the unsigned order by the court reads. Yesterday, on March 19th, circuit judge Andrew Oldman disagreed: “I would leave that stay in place pending tomorrow’s oral argument on the question.” That was just hours after the SCOTUS had rejected an emergency request from the Biden jackasses to look at the administrative stay directed by the 5th Circuit's prior panel. The DOJ's (Department of Justice) stance on the law is that it violates the Constitution's Supremacy Clause which declares that states do not have the right to enforce immigration laws.

As per usual with emergency appeals, the Supreme Court did not give a reason for issuing their order. Justices Brett Kavanaugh and Amey Coney Barrett issued aligning opinions. Barrett wrote on regarding actions of the high court: “never reviewed the decision of a court of appeals to enter—or not enter—an administrative stay.” She continued, that it is “unwise to invite emergency litigation in this Court about whether a court of appeals abused its discretion at this preliminary step.”

Liberal justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson had dissenting opinions. Sotomayor said the order “invites further chaos and crisis in immigration enforcement.” She went on to write that the law “upends the federal-state balance of power that has existed for over a century, in which the National Government has had exclusive authority over entry and removal of noncitizens.” - I say, bullstit! States have always had the legal right and shared responsibility for protecting their sovereignty. Yesterday, the Mexican government said that it will not accept any illegal migrants coming back to them no matter what. They said that anyone deported who is not a Mexican citizen does not have to be accepted by them.

All governor Abbott wants to do is to enforce the laws to keep his state safe and secure, and the Biden commies are doing everything they can to impede that. It's disgusting! Will this nightmare ever end? I sure hope so.

[cyphorical]

A federal court has struck down a ban on gun ownership for some perpetrators of domestic violence. The ruling by the 5th Circuit Court of Appeals relies on an antiquated interpretation of gun laws and comes as the U.S. is seeing a surge of gun violence. The Gun Violence Archive says there were 52 mass shootings last month, making it the deadliest January since it started tracking such data. A 2021 study found that over two-thirds of mass shootings are either domestic violence incidents or are perpetrated by shooters with a history of domestic violence. The Justice Department said it plans to appeal Thursday’s ruling. Meanwhile, on Capitol Hill, at least two Republican lawmakers, including embattled New York Congressmember George Santos, have been spotted wearing AR-15 pins on their lapels. The office of Florida Congressmember Anna Paulina Luna said the shocking accessory is meant to promote a gun bill, though it’s unclear what that bill is.

[justinspoliticalcorner]

Ian Millhiser at Vox:

The Supreme Court announced on Monday that it will not hear Mckesson v. Doe. The decision not to hear Mckesson leaves in place a lower court decision that effectively eliminated the right to organize a mass protest in the states of Louisiana, Mississippi, and Texas. Under that lower court decision, a protest organizer faces potentially ruinous financial consequences if a single attendee at a mass protest commits an illegal act.

It is possible that this outcome will be temporary. The Court did not embrace the United States Court of Appeals for the Fifth Circuit’s decision attacking the First Amendment right to protest, but it did not reverse it either. That means that, at least for now, the Fifth Circuit’s decision is the law in much of the American South. For the past several years, the Fifth Circuit has engaged in a crusade against DeRay Mckesson, a prominent figure within the Black Lives Matter movement who organized a protest near a Baton Rouge police station in 2016. The facts of the Mckesson case are, unfortunately, quite tragic. Mckesson helped organize the Baton Rouge protest following the fatal police shooting of Alton Sterling. During that protest, an unknown individual threw a rock or similar object at a police officer, the plaintiff in the Mckesson case who is identified only as “Officer John Doe.” Sadly, the officer was struck in the face and, according to one court, suffered “injuries to his teeth, jaw, brain, and head.”

Everyone agrees that this rock was not thrown by Mckesson, however. And the Supreme Court held in NAACP v. Claiborne Hardware (1982) that protest leaders cannot be held liable for the violent actions of a protest participant, absent unusual circumstances that are not present in the Mckesson case — such as if Mckesson had “authorized, directed, or ratified” the decision to throw the rock. Indeed, as Justice Sonia Sotomayor points out in a brief opinion accompanying the Court’s decision not to hear Mckesson, the Court recently reaffirmed the strong First Amendment protections enjoyed by people like Mckesson in Counterman v. Colorado (2023). That decision held that the First Amendment “precludes punishment” for inciting violent action “unless the speaker’s words were ‘intended’ (not just likely) to produce imminent disorder.”

The reason Claiborne protects protest organizers should be obvious. No one who organizes a mass event attended by thousands of people can possibly control the actions of all those attendees, regardless of whether the event is a political protest, a music concert, or the Super Bowl. So, if protest organizers can be sanctioned for the illegal action of any protest attendee, no one in their right mind would ever organize a political protest again. Indeed, as Fifth Circuit Judge Don Willett, who dissented from his court’s Mckesson decision, warned in one of his dissents, his court’s decision would make protest organizers liable for “the unlawful acts of counter-protesters and agitators.” So, under the Fifth Circuit’s rule, a Ku Klux Klansman could sabotage the Black Lives Matter movement simply by showing up at its protests and throwing stones.

The Fifth Circuit’s Mckesson decision is obviously wrong

Like Mckesson, Claiborne involved a racial justice protest that included some violent participants. In the mid-1960s, the NAACP launched a boycott of white merchants in Claiborne County, Mississippi. At least according to the state supreme court, some participants in this boycott “engaged in acts of physical force and violence against the persons and property of certain customers and prospective customers” of these white businesses. Indeed, one of the organizers of this boycott did far more to encourage violence than Mckesson is accused of in his case. Charles Evers, a local NAACP leader, allegedly said in a speech to boycott supporters that “if we catch any of you going in any of them racist stores, we’re gonna break your damn neck.”

With SCOTUS refusing to take up McKesson v. Doe, the 5th Circuit's insane anti-1st Amendment ruling that effectively bans mass protests remains in force for the 3 states covered in the 5th: Texas, Louisiana, and Mississippi.

[jonahmagnus]

lol I had no idea you were such a Davy hater. My biggest fear rn tho is the chance of the stake hitting Cody’s heart in Davy’s chest

Compilation

[dontmeantobepoliticalbut]

A federal judge in Austin on Thursday halted a new state law that would allow Texas police to arrest people suspected of crossing the Texas-Mexico border illegally.

The law, Senate Bill 4, was scheduled to take effect Tuesday. U.S. District Judge David Ezra issued a preliminary injunction that will keep it from being enforced while a court battle continues playing out. Texas is being sued by the federal government and several immigration advocacy organizations. Texas appealed the ruling to the conservative 5th U.S. Circuit Court of Appeals.

Ezra said in his order Thursday that the federal government “will suffer grave irreparable harm” if the law took effect because it could inspire other states to pass their own immigration laws, creating an inconsistent patchwork of rules about immigration, which has historically been upheld as being solely within the jurisdiction of the federal government.

“SB 4 threatens the fundamental notion that the United States must regulate immigration with one voice,” Ezra wrote.

Ezra also wrote that if the state arrested and deported migrants who may be eligible for political asylum, that would violate the Constitution and also be "in violation of U.S. treaty obligations."

"Finally, the Court does not doubt the risk that cartels and drug trafficking pose to many people in Texas," Ezra wrote in his ruling. "But as explained, Texas can and does already criminalize those activities. Nothing in this Order stops those enforcement efforts. No matter how emphatic Texas’s criticism of the Federal Governments handling of immigration on the border may be to some, disagreement with the federal government’s immigration policy does not justify a violation of the Supremacy Clause."

Gov. Greg Abbott signed SB 4 in December, marking Texas’ latest attempt to try to deter people from crossing the Rio Grande after several years of historic numbers of migrants arriving at the Texas-Mexico border.

In a statement, Abbott said the state "will not back down in our fight" and that he expects this case would eventually be decided by the U.S. Supreme Court. On social media, he wrote that he is "not worried" because "this was fully expected."

"Texas has solid legal grounds to defend against an invasion," he added.

State Attorney General Ken Paxton, whose office is defending SB 4 in court, said in a statement that he "will do everything possible to defend Texas’s right to defend herself."

The law seeks to make illegally crossing the border a Class B misdemeanor, carrying a punishment of up to six months in jail. Repeat offenders could face a second-degree felony with a punishment of two to 20 years in prison.

The law also seeks to require state judges to order migrants returned to Mexico if they are convicted; local law enforcement would be responsible for transporting migrants to the border. A judge could drop the charges if a migrant agrees to return to Mexico voluntarily.

In December, the American Civil Liberties Union, the ACLU of Texas and the Texas Civil Rights Project sued Texas on behalf of El Paso County and two immigrant rights organizations — El Paso-based Las Americas Immigrant Advocacy Center and Austin-based American Gateways — over the new state law. The following month, the U.S. Department of Justice filed its lawsuit against Texas. The lawsuits have since been combined.

During a court hearing on Feb. 15 in Austin, the Department of Justice argued that SB 4 is unconstitutional because courts have ruled that immigration solely falls under the federal government’s authority.

The lawyer representing Texas, Ryan Walters, argued that the high number of migrants arriving at the border — some of them smuggled by drug cartels — constitutes an invasion and Texas has a right to defend itself under Article I, Section 10 of the U.S. Constitution, which prohibits states from engaging in war on their own “unless actually invaded.”

Ezra said that he “is not unsympathetic to the concerns raised by Abbott,” but appeared unconvinced by Walters’ argument.

"I haven't seen, and the state of Texas can't point me to any type of military invasion in Texas," Ezra said. "I don't see evidence that Texas is at war."

Immigrant rights advocates around the state celebrated the ruling because they worried that SB 4 would lead to border residents' rights being violated.

"We celebrate today’s win, blocking this extreme law from going into effect before it has the opportunity to harm Texas communities," said Aron Thorn, senior attorney for the Beyond Border Program at Texas Civil Rights Project. "This is a major step in showing the State of Texas and Governor Abbott that they do not have the power to enforce unconstitutional, state-run immigration policies."

Edna Yang, co-executive director at American Gateways, said that SB 4 does not fix “our broken immigration system” and it will divide communities.

“This decision is a victory for all our communities as it stops a harmful, unconstitutional, and discriminatory state policy from taking effect and impacting the lives of millions of Texans," she said. "Local officials should not be federal immigration agents, and our state should not be creating its own laws that deny people their right to seek protection here in the U.S."

David Donatti, senior staff attorney at the ACLU of Texas, said the ruling is an "important win for Texas values, human rights, and the U.S. Constitution."

"Our current immigration system needs repair because it forces millions of Americans into the shadows and shuts the door on people in need of safety. S.B. 4 would only make things worse," he said. "Cruelty to migrants is not a policy solution.”

[queenvlion]

[roseannevip]

So fucking proud of him, you could see the happiness in his voice!

[empiricalscotus]

Taking the Fifth

There are several things that are true about the Fifth Circuit. This includes the six cases from the Fifth Circuit that are already granted for argument before the Supreme Court this term, the most from any circuit so far.  It also includes the six judges that former President Trump appointed to the Circuit.  Then there is the speculative. Some argue that the Fifth Circuit is the most…

[fenrislorsrai]

NOTE: in addition to dealing with systemic racism, this article also details a suicide. -

he focused his rage on one secret in particular: their handling of appeals sent to the court by prisoners who claimed they’d been unjustly convicted. Louisiana requires that a panel of three judges review all such petitions — known as pro se petitions, a Latin phrase that means “for oneself.” But Peterson wrote that the judges had instructed him to ignore the law and dispose of the appeals on his own. Defresne, he explained, signed off on the documents “without so much as a glance.” The implications were staggering. Over 12 years, the 5th Circuit, which is responsible for reviewing challenges from trial courts in four parishes, had disregarded at least 5,000 pro se petitions from Louisiana prisoners, according to the court’s records. The inmates ranged from people convicted of murder to nonviolent offenders sent away for life. Many had limited education and struggled to present their arguments in the language of the courts. If Peterson’s accusations were true, none of the judges had ever laid eyes on their claims.

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There is overwhelming evidence that state courts routinely send innocent men and women to prison. Researchers estimate that at least 1% of those serving time for violent offenses have been wrongfully convicted — roughly 7,000 inmates in state prisons alone — though they believe that number is much higher. Louisiana law says that people sentenced to death are entitled to court-appointed lawyers for all of their appeals. Subjected to such scrutiny, an astounding number of the state’s prosecutions have fallen apart. Since 1976, 82% of Louisiana’s death sentences have been overturned by appeals judges after defense attorneys exposed serious violations that occurred at trial. Most sentences were reduced to life; some prisoners were exonerated. That statistic underscores a fundamental inequity. The people sentenced to lengthy or life sentences were arrested by the same police forces, prosecuted by the same district attorneys, represented by the same public defenders and convicted in the same courts as those on death row, but they are on their own. When they file a pro se petition asking Louisiana’s appellate courts to reconsider their cases, they are at a significant disadvantage. Those petitioning the 5th Circuit after that meeting in 1994 had no chance at all. To create the appearance of a proper review, former staffers said Dufresne formed a “pro se committee,” which included three judges who agreed to lend their names to Peterson’s rulings. Whenever a judge on the committee retired, Dufresne appointed someone new. The nature of the pro se committee was an open secret at the courthouse. “I knew what they were doing, and I knew it was unconstitutional,” said one former clerk. “Everyone knew about it.” In Louisiana, courts charge prisoners a fee for petitions — generally $50. Those costs are usually paid by parishes in which the defendants are convicted. By 1999, the 5th Circuit was charging $300. The money, paid by taxpayers, flowed into the 5th Circuit’s discretionary fund. In a period when the state’s criminal justice system was close to financial collapse, with some public defenders representing as many as 400 people at a time, records show that the 5th Circuit collected at least $1.7 million for the pro se petitions its judges did not read. Former 5th Circuit employees told me the judges spent the money on office furnishings, travel allowances — even for retired judges — and other perks the state didn’t cover. When asked about the fund’s expenditures, the 5th Circuit said it keeps financial records for only three years and could not provide an accounting.

THIS ARTICLE DOES NOT HAVE A HAPPY ENDING. JUSTICE IS NOT SERVED

[nodynasty4us]

Republican Party leaders have expressed dissatisfaction that Trump’s appointees do not unfailingly do their bidding. Lower court judges with Supreme Court ambitions—i.e., most Trump appointees—have internalized the lesson that absolute fealty to the GOP, expressed through cartoonishly lawless decisions, is the path to promotion. They cannot be embarrassed into respecting the law when they lack the capacity for shame in the first place.

Mark Joseph Stern, Supreme Court CFPB: The judicial arsonists went too far for the conservative justices this time, in Slate