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A Century-Old Law’s Aftershocks Are Still Felt at the Supreme Court

Almost exactly a century ago, in February 1925, Chief Justice William Howard Taft persuaded Congress to grant the Supreme Court an extraordinary power: to pick which cases it would decide.
Most courts do not get to choose the cases they will hear, and their central task is to resolve disputes one at a time. The Supreme Court, by contrast and by dint of the largely unfettered discretion over its docket granted by the Judiciary Act of 1925, understands its job to be quite different: to announce legal principles that will apply in countless cases.
The law effectively changed the court into a policymaking body, and the nation has yet to come to terms with “the immense powers of this new role,” Robert C. Post, a professor at Yale Law School and its former dean, wrote in a new study.
“The transformation has led to an ever-deepening crisis of the court’s authority,” he added.
Justice Neil M. Gorsuch made the key distinction — between resolving individual disputes and setting down broad legal principles — when the court heard arguments in April on Donald J. Trump’s claim, as a former president, of absolute immunity from prosecution.
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“I’m not concerned about this case,” Justice Gorsuch said, adding, “We’re writing a rule for the ages.”
Granting the court the power to set its own agenda has caused it to gravitate toward particular sorts of cases, Karen M. Tani, a law professor at the University of Pennsylvania, argued recently in the annual foreword to The Harvard Law Review.
“The vast discretionary portion of the docket is decidedly not an objective representation of the legal questions that matter most to the American people,” she wrote, adding that “the court’s discretion has flowed along particular channels — toward issues that have preoccupied the conservative legal movement.”
Even as the court agreed to hear cases last term that ended up boosting Mr. Trump’s prospects and dealing blows to federal regulators, Professor Tani wrote, it turned down an alternative slate of cases on questions of urgent concerns to many Americans — like consumer debt, child support and fair housing.
At his confirmation hearings in 2005, Chief Justice John G. Roberts Jr. famously compared judges to umpires, both in the business of calling balls and strikes. The metaphor, Professor Tani wrote, “registers differently when one recognizes that the court also has some ability to field the players, assign the batting order and dictate which pitches can be thrown.”



When the 1925 law was enacted, it was widely viewed as a modest and sensible adjustment that would let the justices focus on important matters.
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Until then, the court’s docket was both dull and crushing. “You little realize the amount of grinding, uninteresting, bone labor there is in writing more than half the cases decided by the Supreme Court,” Justice John Hessin Clarke wrote in 1922 in explaining his resignation after just six years.
But the changes spurred by the law would have deeper effects than workload management, and Chief Justice Taft knew it.
In a 1921 speech, he argued that the Supreme Court was “not a tribunal constituted to secure, as its ultimate end, justice to the immediate parties.” Instead, he said, the court’s job was to make sure the law was uniform across the nation and “to pass on constitutional and other important questions for the purpose of making the law clearer for the general public.”
Just a few years after the law was enacted, Gregory Hankin, a Washington lawyer, identified the deeper meaning of the change in a prescient 1928 article in The Journal of the American Judicature Society. “One might well say,” he wrote, “that the Supreme Court is abandoning its character as a court of last resort, and assuming the function of a ministry of justice.”
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The court led by Chief Justice Roberts has embraced the power granted by the law, Professor Post wrote in his paper, which is still in draft form and will be presented at a symposium next year. “It is this conspicuous lawmaking role, a gift of the Judiciary Act of 1925,” he went on, “that continues to prompt political contention and crisis.”
A new history of the Supreme Court by Stuart Banner, a law professor at the University of California, Los Angeles, is called, fittingly, “The Most Powerful Court in the World.” The book devotes nine pages to the 1925 law, saying it empowered the justices to pursue their policy goals.
“The justices were transformed,” Professor Banner wrote, “from passive recipients of cases to active participants in the making of the law.”
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Biden urged to empty federal death row before Trump takes office

A coalition of former prison officials, relatives of homicide victims, civil rights advocates and religious leaders is urging President Joe Biden to empty federal death row before he cedes the White House to President-elect Donald Trump, who staunchly supports capital punishment.

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Letters to Biden that were made public Monday ask him to commute all federal death sentences to life without parole, invoking the president’s Catholic faith and public opposition to capital punishment, and criticizing the death penalty as arbitrary, unfair and biased.

“We need clear and lasting steps that will ensure that the next administration will not execute the people currently facing death sentences in the federal system,” states one of the letters, signed by a collection of current and former prosecutors, police chiefs and attorneys general.



Forty people are on federal death row, including the gunman who killed nine Black parishioners in Charleston, South Carolina, the surviving Boston Marathon bomber and the attacker who gunned down 11 people at a Pittsburgh synagogue. All three were sentenced to death when Biden served as president or vice president.

https://www.washingtonpost.com/nati...mc_magnet-deathrowstories_inline_collection_9

Supporters of capital punishment say delaying executions for decades, or not carrying them out at all, can retraumatize the victims’ relatives. They also argue that not carrying out death sentences is a betrayal of the court process through which the punishments were handed down and lets horrific crimes go unpunished.


When Trump’s first administration moved to resume executions, then-Attorney General William P. Barr said the government owed it to “the victims and their families to carry forward the sentence imposed by our justice system.”
Robert Blecker, who wrote a book on the death penalty and taught criminal law and constitutional history at New York Law School, cautioned against mass commutation, saying Biden’s administration should take the time to examine each case and circumstance.

“The essence of executive prerogative is to be discriminating — to discriminate the worst of the worst of the worst from the less bad,” Blecker said.
And if Trump revives the federal death penalty, Blecker said, there should be the same careful individual review.
Trump’s first administration restarted federal executions after a nearly two-decade pause, carrying out 13 lethal injections, some in the days before Biden was sworn in. The president-elect’s transition team did not respond to a request for comment about whether Pam Bondi, his pick for attorney general, would seek to resume federal executions if she is confirmed.


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Big Ten Players of the Week (12/9)

Player of the Week
JuJu Watkins, USC
Sophomore – Guard – Los Angeles, Calif. – Sierra Canyon

• Averaged 30.5 points, 4.0 rebounds, 1.5 assists and 1.5 blocks during USC’s two wins
• Set a new USC record with nine made three-pointers against California Baptist
• Shot a career-high 9-for-11 from beyond the arc on her way to a season-best 40 points versus the Lancers
• Third Big Ten women’s basketball player in the last 25 years to score 40 points and nine three-pointers in a game
• Added 21 points against Oregon
• Earns her first Big Ten Player of the Week award
• Last USC Player of the Week: JuJu Watkins (Dec. 9, 2024)

Freshman of the Week
Olivia Olson, Michigan
Guard – New Hope, Minn. – Benilde St. Margaret’s

• Finished with a game-high 18 points in Michigan’s win over Northwestern
• Also grabbed six boards and recorded a block in 36 minutes of action
• Started the fourth quarter on a solo 8-0 run to erase the Wolverines’ deficit
• Collects her first Big Ten Freshman of the Week laurel
• Last Michigan Freshman of the Week: Syla Swords (Dec. 2, 2024)

Supreme Court Turns Down Cases on Admissions, Gender Identity and Guns

The Supreme Court on Monday turned away cases on admissions policies, gender identity and gun control, eliciting objections from conservative justices that suggested rifts on the court about whether and when to address major questions left open by recent decisions.
The cases involved challenges to admissions plans at three elite Boston public schools, to a Wisconsin school district’s policy on informing parents about students’ gender transitions and to a Hawaii gun law.
Four conservative justices, in dissents and statements, indicated that the court should work faster to address questions raised by recent decisions on race-conscious admissions in higher education and the Second Amendment, as well as ones sure to be prompted when a case argued on Wednesday, on gender transition care for minors, is decided next year.
As is its custom, the court gave no reasons for declining to grant review in all three cases.
The Boston case resembled one from Virginia that the court turned down in February. In both, parents challenged changes to admissions criteria at public schools that did not directly take account of race in trying to diversify enrollment. Whether such indirect efforts are constitutional is a question left open by the court’s decision last year striking down the admissions plans at Harvard and the University of North Carolina, Students for Fair Admissions v. Harvard College.
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In Boston, school officials replaced admissions criteria based on grades and test scores with one that largely allocated seats across ZIP codes based on grades within each. Under the new standards, the share of Black students grew to 23 percent from 14 percent while the share of white students dropped to 31 percent from 40 percent.
Justice Samuel A. Alito Jr., joined by Justice Clarence Thomas, dissented. The schools’ plan, he wrote, “is racial balancing by another name and is undoubtedly unconstitutional.”
“We have now twice refused to correct a glaring constitutional error that threatens to perpetuate race-based affirmative action in defiance of Students for Fair Admissions,” he added, referring to the case from Virginia. “I would reject root and branch this dangerously distorted view.”
In a separate statement, Justice Neil M. Gorsuch wrote that he shared Justice Alito’s concerns but said that later changes to the schools’ admission criteria, not challenged in the pending lawsuit, “greatly diminish the need for our review.”
Justice Alito, again joined by Justice Thomas, also dissented from the court’s decision not to hear a challenge to a “gender identity support” policy of the Eau Claire Area School District that he said “encourages a student to transition to a new gender or assists in that process” without parents’ knowledge or consent.



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Lower courts said the parents seeking to challenge the policy lacked standing because they could not show that their children were transitioning or thinking about it, citing a 2013 opinion from Justice Alito that rejected a challenge to a government surveillance program from journalists and human rights lawyers. Their fear that they would be subject to surveillance in the future, Justice Alito wrote at the time, was too speculative to establish standing.
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If you have information to share about the Supreme Court or other federal courts, please send us a secure tip at nytimes.com/tips.

On Monday, Justice Alito said the court should have granted review of the new case given “parents’ fundamental constitutional right to make decisions concerning the rearing of their children.”
In the case argued on Wednesday, the court said it would not address whether parents have a constitutional right to direct their children’s medical care.
Justice Brett M. Kavanaugh said he would have granted review in the case from Wisconsin. He did not join Justice Alito’s dissent or give reasons of his own.
The case from Hawaii concerned Christopher Wilson, who was charged with carrying a gun in public without a license. He sought to dismiss the charge, citing the Supreme Court’s 2022 decision in New York State Rifle & Pistol Association v. Bruen, which, in striking down New York’s strict firearms licensing law, noted that Hawaii had a similar one.
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The Hawaii Supreme Court ruled against Mr. Wilson, saying he lacked standing because he had never applied for a license.
“That conclusion,” Justice Thomas wrote on Monday, “contravenes the settled principle that Americans need not engage in empty formalities before they can invoke their constitutional rights, and it wrongly reduces the Second Amendment to a second-class right.”
But Justice Thomas said the U.S. Supreme Court had been right to deny review, as the case against Mr. Wilson was at an early stage.
“In an appropriate case, however,” he wrote, “we should make clear that Americans are always free to invoke the Second Amendment as a defense against unconstitutional firearms-licensing schemes.”
Justice Alito joined Justice Thomas’s statement. Justice Gorsuch issued his own statement, saying he was troubled by “the distinct possibility that Mr. Wilson may be convicted of, and ordered to serve time in prison for, violating an unconstitutional law.”

That didn't take long: Iowa State football: Running back Jaylon Jackson arrested for OWI in Ames

Iowa State running back Jaylon Jackson was arrested early Sunday morning for operating a motor vehicle while intoxicated, according to online records.
The arrest occurred at 2:38 a.m. on Sunday. According to Ames Police Department's arrest log, it happened at 618 South 17th Street. It is Jackson's first OWI arrest.

"We are aware of the situation and have no further comment at this time," an Iowa State football spokesperson said.
Jackson, 22, is a graduate transfer from Burleson, Texas. He previously played at Lamar and Eastern Michigan prior to coming to Iowa State.

This year, he has recorded 388 yards and two touchdowns on 93 carries. He also has seven receptions for 41 yards and a touchdown. Jackson had four carries for 15 yards in Saturday's 45-19 Big 12 championship game loss to Arizona State in Arlington, Teas.

Iowa State will play Miami in the Pop-Tarts Bowl on Dec. 28 in Orlando, Fla.
Eugene Rapay covers Iowa State athletics for the Des Moines Register. Contact Eugene at erapay@gannett.com. Follow him on Twitter at @erapay5.

Is work stressing you out?

We can fix that, you’re fired!

Today's lesson: The Jungle by Upton Sinclair

One of my favorite days of the year. Reading this together. Breakfast will never be the same for them!

The following is an excerpt from “The Jungle” by the muckraker Upton Sinclair. He described the filthy conditions of the meat packing industry in Chicago during the Progressive Era. As you read the following sections think about how progressive leaders would want to use the government to regulate the production of food and working conditions in the
late 1800s.


Excerpt A- Workplace Hazards


Let a man so much as scrape his finger pushing a truck in the pickle rooms, and he might have a sore that would put him out of the world; all the joints in his fingers might be eaten by the acid, one by one. Of the butchers and floorsmen, the beef-boners and trimmers, and all those who used knives, you could scarcely find a person who had the use of his thumb; time and time again the base of it had been slashed, till it was a mere lump of flesh against which the man pressed the knife to hold it. The hands of these men would be criss- crossed with cuts, until you could no longer
pretend to count them or to trace them. They would have no nails, – they had worn them off pulling hides; their knuckles were swollen so that their fingers
spread out like a fan. There were men who worked in the cooking rooms, in the midst of steam and sickening odors, by artificial light; in these rooms the
germs of tuberculosis might live for two years, but the supply was renewed every hour. There were the beef-luggers, who carried two-hundred-pound quarters into the refrigerator-cars; a fearful kind of work, that began at four o'clock in the morning, and that wore out the most powerful men in a few years. There were those who worked in the chilling rooms, and whose special disease was rheumatism; the time limit that a man could work in the chilling rooms was said to be five years. There were the wool-pluckers, whose hands went to pieces even sooner than the hands of the pickle men; for the pelts of the sheep had to be painted with acid to loosen the wool, and then the pluckers had to pull out this wool with their bare hands, till the acid had eaten their fingers off. There were those who made the tins for the canned meat; and their hands, too, were a maze of cuts, and each cut represented a chance for blood poisoning. Some worked at the stamping machines, and it was very seldom that one could work long there at the pace that was set, and not give out and forget himself and have a part of his hand chopped off. There were the "hoisters," as they were called, whose task it was to press the lever which lifted the dead cattle off the floor. They ran along upon a rafter, peering down through the damp and the steam; and as old Durham's architects had not built the killing room for the convenience of the hoisters, at every few feet they would have to stoop under a beam, say four feet above the one they ran on; which got them into the habit of stooping, so that in a few years they would be walking like
chimpanzees. Worst of any, however, were the fertilizer men, and those who served in the cooking rooms. These people could not be shown to the visitor, – for the odor of a fertilizer man would scare any ordinary visitor at a hundred yards, and as for the other men, who worked in tank rooms full of steam, and in some of which there were open vats near the level of the floor, their peculiar trouble was that they fell into the vats; and when they were fished out, there was never enough of them left to be worth exhibiting, – sometimes they would be overlooked for days, till all but the bones of them had gone out to the world as Durham's Pure Leaf Lard!


Excerpt B- Reusing Waste

It seemed that he was working in the room where the men prepared the beef for canning, and the beef had lain in vats full of chemicals, and men with great forks speared it out and dumped it into trucks, to be taken to the cooking room. When they had speared out all they could reach, they emptied the vat on the floor, and then with shovels scraped up the balance and dumped it into the truck. This floor was filthy, yet they set Antanas with his mop slopping the "pickle" into a hole that connected with a sink, where it was caught and used over again forever; and if that were not enough, there was a trap in the pipe, where all the scraps of meat and odds and ends of refuse were caught, and every few days it was the old man's task to clean these out, and shovel their contents into one of the trucks with the rest of the meat!


Excerpt C- Using
“Tainted” Meat


All of these were sinister incidents; but they were trifles compared to what Jurgis saw with his own eyes before long. One curious thing he had noticed, the very first day, in his profession of
shoveler of guts; which was the sharp trick of the floor bosses whenever there chanced to come a "slunk" calf. Any man who knows anything about butchering knows that the flesh of a cow that is about to calve, or has just calved, is not fit for food. A good many of these came every day to the packing houses – and, of course, if they had chosen, it would have been an easy matter for the packers to keep them till they were fit for food. But for the saving of time and fodder, it was the law that cows of that sort came along with the
others, and whoever noticed it would tell the boss, and the boss would start up a conversation with the government inspector, and the two would stroll away. So in a trice the carcass of the cow would be cleaned out, and entrails would have vanished; it was Jurgis' task to slide them into the trap, calves and all, and on the floor below they took out these "slunk" calves, and butchered them for meat, and used even the skins of them.

One day a man slipped and hurt his leg; and that afternoon, when the last of the cattle had been disposed of, and the men were leaving, Jurgis was ordered to remain and do some special work which this
injured man had usually done. It was late, almost dark, and the government inspectors had all gone, and there were only a dozen or two of men on the floor. That day they had killed about four thousand cattle, and these cattle had come in freight trains from far states, and some of them had got hurt. There were some with broken legs, and some with gored sides; there were some
that had died, from what cause no one could say; and they were all to be disposed of, here in darkness and silence. "Downers," the men called them; and the packing house had a special elevator upon which they were raised to the killing beds, where the gang proceeded to handle them, with an air of businesslike nonchalance which said plainer than any words that it was a matter of everyday routine. It took a couple of hours to get them out of the way, and in the end Jurgis saw them go into the chilling rooms with the of the meat, being carefully scattered here and there so that they could not be identified.


Excerpt D- Usage of
Chemicals


Cut up by the two-thousand-revolutions- a-minute flyers, and mixed with half a ton of other meat, no odor that ever was in a ham could make any difference. There was never the least attention paid to
what was cut up for sausage; there would come all the way back from Europe old sausage that had been rejected, and that was moldy and white – it would be
dosed with borax and glycerine, and dumped into the hoppers, and made over again for home consumption. There would be meat that had tumbled out on the floor, in the dirt and sawdust, where the workers had tramped and spit uncounted billions of consumption germs. There would be meat stored in great piles in rooms; and the water from leaky roofs would drip over it, and thousands of rats
would race about on it. It was too dark in these storage places to see well, but a man could run his hand over these piles of meat and sweep off handfuls of the dried dung of rats. These rats were nuisances, and the packers would put poisoned bread out for them; they would die, and then rats, bread, and meat would go into the hoppers together. This is no fairy story and no joke; the
meat would be shoveled into carts, and the man who did the shoveling would not trouble to lift out a rat even when he saw one – there were things that went into the sausage in comparison with which a poisoned rat was a tidbit. There was no place for the men to wash their hands before they ate their dinner, and so they made a practice of washing them in the water that was to be ladled into
the sausage. There were the butt-ends of smoked meat, and the scraps of corned beef, and all the odds and ends of the waste of the plants, that would be dumped into old barrels in the cellar and left there. Under the system of rigid economy which the packers enforced, there were some jobs that it only paid to do once in a long time, and among these was the cleaning out of the waste
barrels. Every spring they did it; and in the barrels would be dirt and rust and old nails and stale water – and cartload after cartload of it would be taken up and dumped into the hoppers with fresh meat, and sent out to the public's breakfast. Some of it they would make into "smoked" sausage – but as the smoking took time, and was therefore expensive, they would call upon their chemistry department, and preserve it with borax and color it with gelatine to make it brown. All of their sausage came out of the same bowl, but when they came to wrap it they would stamp some of it "special," and
for this they would charge two cents more a pound.

  • Poll
Who should be last in?

Who deserves the last at-large slot?

  • 9-3 Alabama

    Votes: 14 16.9%
  • 10-2 Miami (or 10-2 SMU if they lose to Clemson tomorrow)

    Votes: 46 55.4%
  • 9-3 Ole' Miss

    Votes: 3 3.6%
  • 9-3 South Carolina

    Votes: 4 4.8%
  • 10-3 loser of ASU/ISU

    Votes: 5 6.0%
  • other

    Votes: 11 13.3%

Assuming there are no major surprises (Clemson over SMU would be the only thing that might shake it up). Who should get the last at-large slot?

Pardoning family members: A tradition (btw, should we do away with executive pardons?)

Bill Clinton defended his decision to pardon his half-brother Roger Clinton, drawing a sharp contrast to Biden’s recent pardon of his son, Hunter Biden.

Speaking at the New York Times DealBook Summit on Wednesday, Clinton highlighted that his brother had served time and contributed to justice before receiving a pardon, a nuance that, he implies, did not apply in Hunter Biden’s case.

Clinton pardoned Roger Clinton during his presidency after his half-brother had already served time for a 1985 conviction on drug charges. Roger, then in his 20s, had pleaded guilty to conspiring to distribute cocaine and spent 14 months in federal prison.



Bill Clinton emphasized that the pardon was intended to restore his brother’s rights as a citizen, notably the right to vote, which had been stripped due to his felony status.
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