Supreme Court: This Place Could Use More Fraud And Pollution!
But you peasants can have a little bit of emergency abortion, as a treat.
The Conservative Supreme Court justices are working hard to get some fat tips from their sponsors after today’s opinion dump, which was a gift tied up in a bow for fraudsters and polluters. Did you expect any better? Sigh. And there is more to come tomorrow, plus they have now added next Monday, July 1, to drop more bombs.
Here’s a summary of today’s bullshit, in order of appearance:
Dirtier Air
Ohio v. EPA: Is it legal for the federal government to try to reduce smog-forming pollution that drifts across state lines? The “Good Neighbor” provision of the Clean Air Act and common sense might say yes, but Ohio, West Virginia, and Indiana, as well as polluting companies, say no!
The Court took up this case on an emergency basis, even though it was still pending in the US Court of Appeals for the DC Circuit and isn’t set to take effect until mid-2026 anyway. Then, they decided 5-4 that they shouldn't have taken it up after all, with Neil Gorsuch delivering the opinion and Amy Coney Barrett joining the liberals, and they stayed the rule, letting polluters keep on a-polluting while it plays out in the Court of Appeals. At least they didn’t smother the entire EPA completely, yet? Give them a day or two!
This Court sure does hate the EPA. In 2022 and 2023 they limited the agency’s ability to limit greenhouse gases and protect wetlands from runoff, because fuck you and your lungs, that’s why.
Not-so-fun fact: Neil Gorsuch’s mom Anne once ran the EPA under Reagan, as in, came in to destroy it. She fired 30 percent of the workforce there, slashed their budget by nearly a quarter, and was forced to resign after she mismanaged a Superfund cleanup site. She was so devoted to polluting that she smoked two packs of Marlboro reds a day, back when people could smoke in the office, and died of cancer. Her ghost is surely very proud.
Should you subscribe to Wonkette today? You should.
Dirtier Frauds
SEC vs. Jarkesy: And in a win for securities-fraudsters everywhere, the Court held 6-3 that the Securities and Exchange Commission doesn’t have the right to adjudicate matters in-house, the way Dodd-Frank said that it did. Instead, people or companies who get an SEC fine have a right to a jury trial under the Seventh Amendment. This obviously will make enforcement slow and expensive, and will restrict the powers of other government agencies to levy fines also.
What other “alphabet agencies” might this effect? The FEC, the FCC, the Department of Labor, any agency that hands out fines? Flash a nipple at the Super Bowl, jury trial. Don’t pay your employees overtime? Jury trial. Your boss, the head of a public agency in a government building, smokes two packs a day in the office with the windows closed against OSHA rules, jury trial! You can see how this could lead to effective non-enforcement of all but the most egregious offenses, so the conservative justices love it.
The flim-flam man whose rights they’re so worried about, “investment advisor” George Jarkesy Jr. and his firm Patriot28 LLC, swindled investors with monkeyshines like “arbitrarily inflating the value of certain holdings from $0.30 per share to $3.30 per share — so that they could charge higher management fees,” telling suckers that they were investing in different things than where the money actually went, and representing “to brokers and investors that a prominent accounting firm served as the funds’ auditor and that a prominent investment bank served as their prime broker, even though the firm never audited the funds and the bank never opened a prime brokerage account for them.” The SEC ordered the sleazebag operation to pay a $300,000 civil penalty and Patriot28 to disgorge nearly $685,000 of its ill-gotten gains.
So unfair! Need jury! Dissented Justice Sonia Sotomayor: “Make no mistake: Today’s decision is a power grab [...] the Court disregards its own precedent and its coequal partners in our tripartite system of Government.”
Dirty Money
Then there’s Harrington vs. Perdue Pharma LP. The Sackler family own Perdue Pharma, which aggressively and knowingly pushed opioids to the masses.
Perdue was hit with thousands of lawsuits totaling billions of dollars, and the Sackler family began a “milking program,” taking $11 billion — about 75 percent of Perdue’s total assets — out of the company over the next decade. Then in 2019, the drained Perdue filed for Chapter 11 bankruptcy, and the Sacklers proposed to generously return approximately $4.3 billion to Purdue’s bankruptcy estate in exchange for the family being released from all opioid-related claims, and enjoining victims from bringing such claims against them in the future. Truly the sleaziest people on earth.
The Bankruptcy Court approved this, and most of the victims wanted it. But the Second Circuit was like, the Bankruptcy Court doesn’t have the power to let some non-party to the bankruptcy off the hook.
Which makes sense, why should they be able to shell-game the bankruptcy system like that? But this decision also effectively screws over the opioid victims and creditors, who are now left starting over with no settlement at all. On this one, Justice Ketanji Brown Jackson joined the Evil Three and Coney Barrett (who is currently trying mightily to differentiate herself from Alito and Thomas and fairly succeeding), and Boof and Roberts joined Sotomayor and Elena Kagan. It is a muddle!
And finally, we got, Moyle vs. United States, which Robyn covers more deeply here. Can Idaho ignore the federal Emergency Medical Treatment and Labor Act (EMTALA) that requires most hospitals to provide emergency care to patients who need it, if that emergency care is an abortion? Can they delay care for women who are going into sepsis with an ectopic pregnancy while they get airlifted to a sane state, if she might not die, and just lose an organ or two? In a 6-3 opinion (Alito, Thomas and Gorsuch being the assholes), the court lifted the stay while the case goes back to the Ninth Circuit. So, they didn’t clear up anything they were asked to clear up like “does a state law bigfoot a federal law? Check one box y/n.” And just wasted a bunch of time when they could have not bothered. And the opposite ruling from the Fifth Circuit in Texas, which found yay sepsis, still stands.
Great work there, SCOTUS! Can’t wait to see what you destroy tomorrow! SIGH.
PREVIOUSLY!
I posted this also under the Moyle article, but it fits better here under the general rundown of the Supreme Court's silliness today:
What we are seeing in case after case is the confusion you get from activist politicians taking the place of judges on the court. Say what you wish about Scalia, but at least he had a working philosophy and you could sort of guess where he is going and then apply his rationale to new cases.
But the current far right members of the Court have no legal philosophy. As we have seen in decision after decision, they simply have an outcome they want which they then try to justify ("I hate gun legislation, so I will use cherry picked ahistorical accounts of what the Founders were doing in 1783 and ignore everytihng else to decide if law responding to modern problems apply . . . and, what do you know, there were no laws against bump stocks or spousal abuse in 1783!" or "I want relgious people to be able to be bigots, so I'll ignore the fact that a public school coach is having revial meetings at mid-field and claim they were small, quiet gatherings, or I will ignore the fact that the person is only claiming that someday they may want to make a web page and that may mean they have to deal with a gay person, and make up a ruling that I want that ignores reality!").
But how does a lower court use the standard of "Clarence Thomas doesn't like things" when it review a new case? Does it require someone to present an ahistorical history to support what the court thinks is Clarence Thomas' point of view? And why are we expecting judges to suddenly all have degress in history (or, as we get into Chevron defrence, have expertise in everything else).
We are seeing an attempt by the far right thanks to the Federalist and Heritage to get rid of judges laying down rules that other judges can follow and instead replace it with a high-priesthood with no need for logic as all that matters is their personal beliefs. After all, that is why they were selected for the bench.
The bad news is that this attempt by the far right to make the judiciary into a super legislature not subject to any controls is doing terrible harm to our country. The goodnews is that without any actual philosophy and without the ability to see the obvious consequences of putting politics ahead of legal philosophy, we are stuck with a ton of major decisions (Dobbs, Bruen, etc) that no court can actually implement, because reality keeps getting in the way.
It's the bribery decision I just can't. I mean, every conversation with a corrupt politician is going to go something like this:
Business: "Psst! Here's $100K in small bills for you to kill this legislation."
Politician: "You idiot! Put that away and sneak it to me AFTER I kill this legislation!"