(C) Daily Kos This story was originally published by Daily Kos and is unaltered. . . . . . . . . . . SCOTUS Justice Kagan to far-right lawyer: ‘You're just flying in the face of 250 years of history’ [1] ['Daily Kos Staff'] Date: 2023-10-05 The U.S. Court of Appeals for the 5th Circuit, which handles federal cases arising from Texas, Louisiana, and Mississippi, is dominated by a bunch of Donald Trump appointees and has become the rogue court of the federal judiciary. The sheer volume of controversial decisions coming out of that court accounts for the outsize proportion of cases from it the U.S. Supreme Court will hear this session. These nightmare cases are from the extremist fringes and concern basic separation-of-powers issues, civil rights, abortion rights, gun safety, and federal regulatory power. They are cases that will stretch the patience and the persuasiveness of the court’s three liberals—Justices Elena Kagan, Sonia Sotomayor, and Ketanji Brown Jackson. They’re going to have to find the arguments that will keep at least two of the court’s conservatives in the land of rationally constitutional thinking. The liberals had their hands full with the first of these cases Tuesday, when the court heard Consumer Financial Protection Bureau v. Community Financial Services Association, a challenge to the constitutionality of the CFPB that was brought by payday lenders. Three Trump-appointed judges on the 5th Circuit ruled that the funding structure of the CFPB is unconstitutional, since it is funded by the Federal Reserve instead of congressional appropriations. The claims made by Noel Francisco, the former Trump-appointed solicitor general who argued the case on behalf of the CFSA, were so outlandish that the court was highly skeptical—even Justice Clarence Thomas. Sotomayor struggled to find the thread in Francisco’s argument about the agency’s funding and congressional intent, and admitted that she was at a “total loss.” Kagan tried to walk Francisco through the very basic working of how Congress makes appropriations, and has done for all of its history. Francisco seemed to argue, she said, that the “only constitutionally valid kind of appropriations” are annual line-item appropriations, though she admitted, “I'm not exactly sure what the argument is.” x "You're flying in the face of 250 years of history." -- Justice Kagan to the lawyer arguing against the CFPB pic.twitter.com/7qEWufuPPK — Demand Justice (@WeDemandJustice) October 3, 2023 “But the history of our country just rejects that scheme,” she told Francisco. “I mean, that might have been a way to understand what the Framers were doing, but it turns out that from the very first year, that's not what they were doing. That's not what they did. … So you're just flying in the face of 250 years of history.” Jackson also provided a key civics lesson for the court in this question to current Solicitor General Elizabeth Prelogar, who represented the U.S. government and the CFPB. It’s about the congressional power of the purse and the separation of powers, Jackson and Prelogar argued. x "[The Appropriations Clause seems to give] the legislature the prerogative of the purse. Here we have a statute in which the legislature has exercised that." -- Justice Jackson cuts to the heart of the oral arguments in CFPB v. Community Financial Services Association of America pic.twitter.com/85AwrQGjK0 — Demand Justice (@WeDemandJustice) October 3, 2023 Conservative Justices Brett Kavanaugh and Amy Coney Barrett were the most receptive to the civics lesson and the most skeptical of Francisco’s claims. Kavanaugh asked why the CFPB’s funding could be thought unconstitutional when “Congress could change it tomorrow.” Barrett was unconvinced by Francisco’s argument that the constitutional matter in question—the appropriations clause—prohibits Congress from setting up any variety of funding mechanisms. Barrett pointed out to Francisco that he was actually arguing against himself in response to a question from Jackson. “You were just saying to Justice Jackson that there's nothing in the appropriations clause itself or in the word 'appropriations' that imposes the limits that you're talking about,” she said. Francisco did such a poor job arguing his case that Thomas tried to help him refine his point: “Mr. Francisco, just briefly, I'd like you to complete this sentence. Funding of the CFPB … violates the appropriations clause because?” It didn’t help. Francisco just restated his muddy case that Congress didn’t specify a “fixed” amount of spending for the CFPB, but instead gave it a cap and left it to the director of the agency to determine what to spend. Never mind that that ground had already been covered and the argument already defeated. Justice Samuel Alito was the sharpest critic of the government’s case in the oral arguments, and he seems to have been the only justice who was completely receptive to the plaintiffs. Alito, by the way, should have recused from this case because of a conflict of interest: his friendship with—and the gifts he has received from—Paul Singer, Alito’s billionaire fishing buddy, who stands to richly benefit if the court decides in favor of the lenders. In this case, the three liberals seemed to have won the day with their questions and arguments. When Thomas is trying to coach a lawyer whom he wants to agree with to make his argument better, you know that there’s a problem. There are a couple of factors apparently at work here. One is that the hard-right activist judges on the 5th Circuit are sending ridiculous, half-baked cases that are too outlandish even for the Trump-appointed justices to support. But there’s also increased public and congressional scrutiny on the court and a great deal more attention being paid to what they’re doing. Are the heady days of overturning half a century of precedent (see: abortion rights) and running wild in the shadow docket over for the court’s conservatives? Time—and this young term—will tell. Of course, the court is still capable of doing real damage. But it doesn’t look like it will be upending centuries of history and precedent on the appropriations clause this time around. And if the court turns out to be less radical this term, it will be in no small part because of the backlash from its past actions. RELATED STORIES: The conservative Supreme Court majority is issuing some of its most extreme rulings in the shadows Supreme Court readies to return under a cloud Here are the crucial cases before the Supreme Court this year [END] --- [1] Url: https://www.dailykos.com/stories/2023/10/5/2197399/-Supreme-Court-liberals-grapple-with-5th-Circuit-s-extreme-cases?pm_campaign=front_page&pm_source=top_news_slot_5&pm_medium=web Published and (C) by Daily Kos Content appears here under this condition or license: Site content may be used for any purpose without permission unless otherwise specified. via Magical.Fish Gopher News Feeds: gopher://magical.fish/1/feeds/news/dailykos/