KBJ: no more punches pulled, no more fucks to give

 

Listen to this

 

Senator Sheldon Whitehouse talks with Dahlia about the Supreme Court's corruption and Ketanji Brown Jackson's accusations.  Definitely worth your time.

SCOTUS greenlights Trump's deportation nightmare

 

Justice Jackson is going to get herself impeached.

In case you haven't absorbed it yet, we're the bad guys.

Sure, but they won't do anything about it.

In related news:

Faux News

SCOTUS strikes again

This time, however, two of the three "liberal" justices went with the "conservatives" to weaken the rights of unions to strike.

In a decision released yesterday, the Supreme Court merged its disregard for workers’ rights with its hatred of the administrative state to produce a ruling that undermines the most powerful tool labor has to defend itself from unfair or unsafe working conditions: the strike.

The case is called Glacier Northwest Inc v. International Brotherhood of Teamsters. At issue was a 2017 strike organized by Teamsters Local 174 against Glacier Northwest, a cement company in Seattle. The teamsters showed up for work like on a normal workday, loaded their trucks with wet cement, and set out to make deliveries. But when labor negotiations with Glacier broke down, the teamsters returned the trucks to the company and walked off the job. The workers left the cement mixers running [so the cement wouldn't set], but some of the product hardened, rendering it useless. After the strike was over, Glacier sued the teamsters union in a Washington state court for damages caused by the strike.

All strikes cause economic harm to the employer. That is literally the point of strikes. And yet most people understand that striking workers cannot do extra damage to their employers beyond their refusal to work.

[...]

Writing for the majority, Justice Amy Coney Barrett found that the teamsters created the harm to Glacier by showing up for work in the first place. She writes: “So by reporting for duty and pretending as if they would deliver the concrete, the drivers prompted the creation of the perishable product [emphasis in the original]. Then, they waited to walk off the job until the concrete was mixed and poured in the trucks. In so doing, they not only destroyed the concrete but also put Glacier’s trucks in harm’s way.”

[...]

The workers were not “pretending” to work; they showed up to work. The right to strike is not limited to the beginning or end of a workday. Somebody should inform Barrett that a key difference between workers and slaves is that workers can stop working whenever they damn well feel like it.

[...]

But [...] the question of added harm is, or should be, irrelevant under the law. That’s because the right to strike is protected under the National Labor Relations Act (NLRA) [... The National Labor Relations Board (NLRB)] —not Glacier, not a state court, and not the US Supreme Court—is supposed to get first crack at determining whether a union’s activities are protected under the NLRA.

According to the Supreme Court’s own precedents [...] , it is supposed to stay out of labor disputes until the NLRB has had a chance to rule.

  Elie Mystal @ The Nation

Of course, we've already seen what this court thinks of precedents.

Ketanji Brown Jackson argues in her lone dissent, the NLRA “requires state courts to take a ‘jurisdictional hiatus’ while the [NLRB] considers the dispute in the first instance.”

KBJ argues, correctly, that the Supreme Court should not have taken the case at this time.

Only if the NLRB determines that the union activity is unprotected can lawsuits against unions or workers proceed to the state courts.

[...]

[A] Washington state court found that the teamsters’ actions were “arguably protected” by the NLRB and dismissed the case. Then, the general counsel of the NLRB filed an administrative complaint against Glacier. Clearly, both the NLRB and the state court think that this case should first be settled by the NLRB.

[...]

If employers can run to state courts every time they don’t like how striking workers strike, it vitiates the power of the NLRB and the right to strike in general.

[...]

Barrett, Sotomayor, and Kagan might think that this ruling will be cabled to the specific situations where workers show up for work, strike in the middle of the day, and “create” extra economic harm to their employers, but the practical effect of this opinion will be to give every employer an incentive to sue in state court for damages that they would not have been able to get through the NLRB.

Jackson chastised her fellow justices for “falter[ing]” by abandoning a half-century of precedent “scrupulously guard[ing]” the authority of the NLRB.

The Joe Biden appointee berated her peers for “try[ing] its own hand” at interpreting NLRB precedent and making related factual determinations that will lead to chaotic consequences.

“And in the course of inappropriately weighing in on the merits of those questions at this stage, the majority also misapplies the Board’s cases in a manner that threatens to both impede the Board’s uniform development of labor law and erode the right to strike,” Jackson warned. That danger was precisely the reason Congress created the NLRB, said Jackson, articulating an argument whose parallel might well be applied to other federal agencies in response to the current Court’s hostility toward the “administrative state.”

[...]

Costly damage as a result of a strike is nothing new, she argued. Rather, “Congress was well aware that organized labor’s exercise of the right to strike risks harm to an employer’s economic interests.”

Despite the potential for damage to an employer, “Congress protected that right anyway,” said Jackson.

[...]

Jackson acknowledged that striking employees would not have legal protection if they took an “affirmative step to destroy or seize the employer’s property,” or if they failed to take “reasonable precautions” to avoid “imminent, aggravated injury,” but likened perishable concrete to spoiled milk or cheese — results that do not generally render a strike “unprotected.”

[...]

Jackson called the fact that drivers could have “saved” the concrete by delivering it to the intended customers “beside the point.” Holding employees liable for incidental loss of perishable goods would undercut their right to strike in the first place. The majority, by contrast, focused on the damage to the trucks — as opposed to the damage to the hardening concrete; Jackson said such an analysis is “complex” and “nuanced,” and that the strike involved was at least “arguably” protected.

[...]

Justice Clarence Thomas also wrote a short concurrence which was joined by Gorsuch. In it, Thomas urged the Court to rethink the framework by which it analyzes conflicts between state law and the NLRA. While the applicable precedent did not need to be disturbed in the Glacier case, Thomas suggested the Court consider upending it in an “appropriate” case in the future.

  MSN

Clarence is letting us all know that he is ready to destroy decades of progress, in this case by inviting someone to bring a case that would permit SCOTUS to dismantle the NRLA, and in Dobbs by signaling that someone should bring a case that would permit SCOTUS to take away the right to gay marriage, and even to contraception.

...but hey, do what you want...you will anyway.

Excellent podcast on SCOTUS internet cases

If you've been hearing about the current Supreme Court cases on privacy rights and content moderation (is You Tube/Twitter/Facebook responsible for individuals' content on their site?) and are not absolutely certain you know exactly what they're talking about and what's at stake on the internet, this interview is just what you need. I thought I knew pretty well, but I learned a lot here.

Justice Stephen Breyer's last day on the court is today

Breyer, who had announced his retirement in January, sent a letter to President Joe Biden on Wednesday confirming that he will leave the high court as its current term ends on Thursday.

“The Court has announced that tomorrow, beginning at 10 am, it will hand down all remaining opinions ready during this Term. Accordingly, my retirement from active service… will be effective on Thursday, June 30, 2022, at noon,” Breyer wrote.

[...]

[Ketanji Brown] Jackson will join a heavily conservative court, where the liberal minority has been on the dissenting side in most major contentious cases.

[...]

The court’s next term is set to start early in October.

  alJazeera

And, of course, today's decision on the EPA's authority was to limit it.

The Supreme Court on Thursday issued a decision limiting the power of regulatory agencies within the federal government, saying the Environmental Protection Agency overstepped its authority in 2015 when it tried to limit greenhouse-gas emissions from power plants.

West Virginia led a coalition of Republican-leaning states and coal producers that asked the Supreme Court to weigh in and clarify the limits of the Environmental Protection Agency’s authority, raising broader questions about how far the regulatory authority of federal agencies extends. The coalition said powerful and wide-reaching policies should come from Congress, not agency-level regulators.

  WSJ

Come November, vote for more Democrats, especially to the Senate.

Surprisingly, the Court allowed Biden to end Trump's "Remain in Mexico" policy. Next session, they will take up cases about voting districts in Louisiana and Alabama.

UPDATE:

Grace and vulnerability across differences

How are we to talk about sensitive or contentious cultural issues when even the language around them is a trigger?

"I have thoughts about transgender athletes.  I don't have the language to talk about the thoughts I have, because if I walk into a room with people who think about this a lot, and who know all of the letters, I am immediately going to be seen as "this is the dude that doesn't really understand the differences between the different letters."  And so, I just don't have those conversations with those folks.   [...] 

"But this language is everywhere.  Latinx.  It's like saying that Latino is gendered.  And Latina is gendered, and in order to be inclusive, let's just put an X there.  There are colleges that don't have freshmen any more.  They have first-years, because freshmen suggests that it's a gendered first year student that is a man, and not a woman, so they call them first-years.

"And so this is a problem.  For some folks, this is like the woke mob run amok, and for others this is inclusion that's well-intentioned, but maybe not having the results they would like.

"But, if we can figure out how to create social trust in a diverse society of 330 million people, then we will have discovered the American Holy Grail.  That is the "more perfect union."  And it might be ultimately uncomplete-able.  It may never be attainable, but the pursuit of it is where the beauty of America is, and that's where the honor in being an American resides.  But the pursuit of it means, not only are you willing to be vulnerable and learn, in order to be in conversation with other folks, but they extend grace, or you extend grace, when other people try to do the same thing. And that is extremely difficult to do, because power, personal power, individual agency, feels like it's surrendered when you extend grace or when you appear vulnerable.  Grace and vulnerability across differences is especially contentious in a hyper-partisan environment where everything is zero sum.

"So, the fullness of the American experiment is captured in our ability to extend social trust across difference. 

"And, here's to trying."

Dr. Ted Johnson  

excerpt from The Focus Group podcast April 18, 2022

(This podcast episode is actually about the different ways swing voters, Republicans, and Democrats view the appointment of Ketanji Brown Jackson to the Supreme Court.  Worth a listen.)

It's done

Judge Ketanji Brown Jackson became the first Black woman to be elevated to the Supreme Court when the Democratic-controlled Senate on Thursday confirmed President Joe Biden's pick.

The final vote was 53-47, with all 50 Democratic caucus members supporting Jackson, joined by Republican Sens. Susan Collins of Maine; Lisa Murkowski of Alaska; and Mitt Romney of Utah. In a symbolic moment, Vice President Kamala Harris, the first Black woman elected to her job, presided over the vote.

  NBC

And then there were two three

Lisa Murkowski and Susan Collins.  You think Judge Jackson will get any more Republican support?

...but hey, do what you want...you will anyway.

UPDATE:  

As I was saying...

Senate Republicans pushed Judge Ketanji Brown Jackson, President Biden’s Supreme Court pick, on her ruling involving a former Trump aide and a House panel investigating then-President Trump.

[...]

In the case, Committee on the Judiciary vs. McGahn, Jackson ruled that former White House counsel Don McGahn had to comply with a subpoena from the House Judiciary Committee — which was investigating if Trump obstructed justice, a question that eventually got folded into an impeachment inquiry — writing in her decision that: “Presidents are not kings.”

[...]

Sen. Chuck Grassley (Iowa), the top Republican on the committee, appeared to take issue with Jackson’s phrasing of “presidents are not kings” and that “they do not have subjects, bound by loyalty or blood.”

“Did the Justice Department argue that the president of the United States enjoys the same status as a monarch, or that he has subjects who have sworn a blood oath to him?” Grassley wrote in his questions.

[...]

Sen. Marsha Blackburn (R-Tenn.) also questioned Jackson’s phrasing asking if it is “improper for a judge to suggest that the Department of Justice was claiming monarchical powers through this kind of op-ed style rhetoric” and if it indicated Jackson’s personal views.

  The Hill

And that's really why they're performing for the base.

...but hey, do what you want...you will anyway.

Susan Collins finally steps up

Since the vote hasn't happened yet, I hope I didn't jinx it.

...but hey, do what you want...you will anyway.

I think I know why the Republican Senators went at Ketanji Brown Jackson so hard

People are asking why they were so nasty.  The worst of them attacked her over CRT and child pornography and her defense of a Gitmo detainee (which was assigned to her, btw), but I think the real bur in their saddles was this:  She ruled against Don McGahn's bid to avoid testifying to the impeachment committee saying, "Presidents are not kings."  

I had forgotten she was the judge who did that.

The assholes attacking her at her confirmation hearings needed footage to show Trump's base for 2022 and 2024 elections just how much they also hate anyone who crosses Trump.

Jackson's 120-page ruling offers a brutal takedown of the White House's beloved “absolute immunity” defense, which the judge describes as “baseless,” “a fiction that has been fastidiously maintained over time through the force of sheer repetition,” and as an idea that “simply has no basis in the law.” “To make the point as plain as possible, it is clear to this Court for the reasons explained above that, with respect to senior-level presidential aides, absolute immunity from compelled congressional process simply does not exist,” Jackson writes, claiming that the Justice Department's insistence that it does exist “promotes a conception of separation-of-powers principles that gets these constitutional commands exactly backwards.” “In reality, it is a core tenet of this Nation’s founding that the powers of a monarch must be split between the branches of the government to prevent tyranny,” Jackson writes.

  Vanity Fair

All we really needed

Glad I missed it

I haven't been watching Judge Ketanji Brown Jackson's confirmation hearings.  I don't need to hear any more Republican bullshit.

For reasons best known to himself, [Senator Ted] Cruz decided that the first Black woman ever nominated to the U.S. Supreme Court needed to be grilled about what he evidently perceived as a connection to critical race theory — a graduate school discipline lately demonized by Republicans, but that has played no part in Jackson’s jurisprudence or career. As Jackson patiently explained, “I’ve never studied critical race theory. I’ve never used it. It doesn’t come up in the work that I do as a judge.”

That wasn’t good enough for Cruz. Mischaracterizing critical race theory as assuming a “fundamental and intractable battle between the races,” he employed the classic McCarthyite tactic of insinuating guilt by association, in this case bringing up her membership on the board of trustees of the Georgetown Day School.

[...]

To drive his point home, Cruz displayed a stack of books that his staff discovered to be either assigned or recommended at Georgetown Day School. The one he found most “astonishing” was a children’s book by Ibram X. Kendi, “Stamped for Kids,” which is on the “summer reading list” for grades three through five. Having honed his recitation skills by reading aloud from Dr. Seuss’s “Green Eggs and Ham” during a one-man Senate filibuster, Cruz inflected appropriate alarm over a short passage from “Stamped for Children”: “Can we send white people back to Europe?”

Never having previously seen the book, Jackson was unable to point out that Cruz had completely misinterpreted Kendi’s message, which was to show the historical offensiveness of telling anyone in the U.S. to “Go back to where you came from.” Nor did Cruz recognize that a summer reading list would be provided to parents, who of course would exercise supervision of their children’s actual reading.

[...]

Purging libraries, of course, was the essence of McCarthyism. In March 1953, McCarthy sent his chief counsel, Roy Cohn, on a tour of U.S. cultural center libraries in Europe for the purpose of identifying and removing so-called “communist” books from the shelves.

[...]

Meeting with reporters in Frankfurt, for example, he triumphantly displayed “The Maltese Falcon,” by the “hard-boiled” mystery writer Dashiell Hammett, as “proof that there were indeed Communists represented in the American library.”

[...]

Under orders from Secretary of State John Foster Dulles, many books “stocked in our libraries throughout the world” were soon removed.

[...]

To his credit, President Dwight Eisenhower refused to go along. Speaking at the Dartmouth College commencement, he told the graduates, “Don’t join the book burners. Don’t be afraid to go in your library and read every book.”

[...]

[P]erhaps a better-known admonition from the McCarthy era would be even more appropriate [for Senator Cruz]. “Have you no sense of decency, sir, at long last? Have you left no sense of decency?

  The Hill

This part might have been fun, though...

Senate Judiciary Committee Chairman Dick Durbin (D-Ill.) cut off Sen. Ted Cruz (R-Texas) in the midst of a series of questions about Judge Ketanji Brown Jackson’s handling of child pornography cases, a subject that Cruz and fellow White House hopeful, Sen. Josh Hawley (R-Mo.), have focused on extensively.

Durbin and Cruz got into a testy exchange after Durbin banged his gavel and informed his colleague that his 20 minutes of allotted time had expired. Cruz protested that Durbin had taken up some of his time by interjecting during his increasingly tense back and forth with Jackson.

Durbin at one point even advised Jackson that she didn’t need to answer Cruz’s questions because the Republican senator kept on interrupting her when she provided answers that didn’t directly address the details of the cases he was talking about.

  The Hill

And Lindsey Graham had declared this wasn't going to be a circus.

...but hey, do what you want...you will anyway.

Ketanji Brown Jackson is getting her grilling today

And I can't watch.  Here's why...

...but hey, do what you want...you will anyway.

Finally!

On the campaign trail, Biden vowed that if he were to get a vacancy he would fill it with an African American woman, which would represent a historic first for the high court. Potential candidates include Judge Ketanji Brown Jackson, 51, who was confirmed last year to the powerful DC-based appellate court. She once served as a law clerk for Breyer, and also worked as an assistant federal public defender and served on the US Sentencing Commission.

Another possibility would be Justice Leondra Kruger, 45, who serves on the California Supreme Court and is a veteran of the US Solicitor General's office.

  CNN

Want to bet whether the Senate has a hard time confirming any Joe Biden nominee?

UPDATE 1/27: