SCOTUS Delays Hearing Harvard Case | McConnell Up To His Same Ole Supreme Court Tricks

June 15, 2021

The Supreme Court yesterday effectively postponed hearing a challenge to Harvard’s use of affirmative action by issuing an order asking the Biden Justice Department to offer its view on a case before the court. Challengers to Harvard argue Asian Americans are held to a higher standard in admissions and essentially have their numbers capped in order to make room for other minority candidates. The use of affirmative action has withstood Supreme Court scrutiny for decades, including in a 2016 ruling in a case where a white student challenged a University of Texas policy.

Nina Totenberg with NPR reports SCOTUS yesterday also ruled that some crack cocaine offenders who were given harsh prison terms more than a decade ago can’t get their sentences reduced “under a federal law adopted with the purpose of doing just that.” She writes, “At issue in the case was the long and now notorious history of sentencing under the 1986 Anti-Drug Abuse Act, which established harsh mandatory prison sentences based on the amount of drugs that the defendant possessed or sold. The triggering amount, however, was different for crack cocaine used most often by Black people, and powder cocaine, used most often by whites. Indeed, the ratio was 100-to-1, so that a five-year mandatory minimum penalty, for instance, was triggered by possession of 5 grams of crack, whereas the same penalty was triggered by 500 grams of powder cocaine. Nine years after enactment of these mandatory penalties, the U.S. Sentencing Commission found these disparities unjustified, and by 2010 Congress passed new legislation to reduce the disparity to from 100-to-1 to 18-to-1. But that left everyone previously sentenced under the old regime stuck with the harsher penalties.”

John Fritze with USA Today also reviews the Supreme Court’s decision to reject retroactive sentence reductions for small amounts of crack cocaine. He notes, “Though the question in the case was narrow, it arrived as bipartisan majorities in Congress have sought to rethink long sentences for relatively small amounts of drugs. And it sparked a heated debate between one of the high court’s leading conservative voices and one of its leading liberals over the history of drug sentencing and whether Congress should ‘right this injustice’ – despite the fact that all nine justices agreed on the outcome in the case. Associate Justice CLARENCE THOMAS wrote the opinion for the court. Associate Justice SONIA SOTOMAYOR wrote a concurring opinion in which she agreed with most of the court’s reasoning but described the outcome as ‘no small injustice’ and encouraged Congress to change the law to address similar situations.”

ust when we’ve begun to get ourselves together, MITCH MCCONNELL announces it is “highly unlikely” that he would let PRESIDENT BIDEN appoint a Supreme Court justice if Republicans took back the Senate. He said on the Hugh Hewitt radio program yesterday, “I think in the middle of a presidential election, if you have a Senate of the opposite party of the president, you have to go back to the 1880s to find the last time a vacancy was filled.”

Mark Joseph Stern with Slate responded to SENATOR MITCH MCCONNELL’S interview about Supreme Court openings by arguing, “These comments are not remotely surprising. The Republican Party has outsourced much of its agenda to the federal judiciary, a strategy that requires its lawmakers to ruthlessly extinguish Democrats’ influence over the courts. To that end, a GOP-controlled Senate will never again confirm a Democratic president’s Supreme Court nominee. Not in an election year or any other year. Not in your lifetime or mine. Never.”

“If PRESIDENT JOE BIDEN wants to fill a Supreme Court vacancy, he had better hope a seat opens up between now and the end of 2022. That’s the unmistakeable message sent by Senate Minority Leader MITCH MCCONNELL (R) in an interview Monday with conservative talk radio host Hugh Hewitt.” Chris Cillizza with CNN reacts to McConnell’s comments on Monday and lays out his theory for the calculations the senator is making with these comments. “First of all, it helps unite a fractious Republican base, which cares deeply about conservative jurists — and views McConnell’s blocking of Merrick Garland in 2016 as a moment of triumph. Second, it is likely to stir up the Democratic base — and confirm for liberals that Breyer needs to retire and Biden needs to fill the opening created ASAP.  Which could well impact Breyer’s ultimate decision. (CNN has previously reported that Democratic leaders are nervous about liberals pushing Breyer toward the exit — and having the exact opposite effect.)”

The comments from MITCH MCCONNELL yesterday came just after REP. ALEXANDRIA OCASIO-CORTEZ said she thinks JUSTICE STEPHEN BREYER should retire at the end of the Supreme Court’s term. When asked if he should retire she said she “leans toward yes.” Not exactly a forceful answer. Even so, by just suggesting that the eldest justice step down this year, her comments drove headlines this week.

The Supreme Court yesterday left in place the convictions of two members of a white supremacist group who participated in a white nationalist rally in Charlottesville, Virginia in 2017. The two men challenged their convictions by arguing that the Anti-Riot Act, a law they pleaded guilty to violating, is overly broad under the First Amendment’s free speech clause. The cases were turned away without comment from the high court.

On Monday, the Supreme Court rejected an appeal from oil companies, leaving intact an important procedural ruling favoring two California cities suing for billions of dollars to address the impact of climate change. Without comment, justices refused to consider companies’ effort to shift a lawsuit into federal court that is being led by litigants from around the country. Litigants including San Francisco and Oakland are seeking reimbursement for the costs associated with rising sea levels. Greg Stohr with Bloomberg reports. 

Bob Egelko with The San Francisco Chronicle points out though that the oil companies will have another chance to defend themselves in federal court. Egelko notes that they’re more likely to have the cases dismissed in federal court than if they get returned to the state courts where they were initially filed. “The suits, filed in 2017, seek billions of dollars in damages against five oil giants: Chevron, BP, ConocoPhillips, ExxonMobil and Shell. The cities, and local and state governments that later filed similar cases, say the companies have profited from products they knew were causing dangerous rises in temperatures and sea levels, forcing higher government expenditures on sea walls and other protections. The critical issue at this stage of the proceedings is whether the cities can sue in state court, where they rely on California’s law against ‘public nuisances,’ private actions that cause public harm.”