Federal Courts: Last Week Tonight with John Oliver (HBO)

Supreme Court's Recent Decisions

• The US Supreme Court's last term was eventful, with rulings on gun rights, social media censorship, and gerrymandering, and a decision that made the president nearly immune from prosecution for official acts of the presidency (58s).
• The court's decision in Trump v. US held that presidents are completely immune from prosecution for things they did through core Constitutional Powers of the presidency, but left open to interpretation what constitutes a Core Power and an official act (1m9s).
• During oral arguments, Trump's attorney argued that the president could be shielded from prosecution for assassinating a political rival, which is a terrifying prospect (2m0s).
• The current Supreme Court has been aggressive in applying hardline conservative views to reverse established law, overturning Roe v. Wade and reversing 45 years of legal precedent on affirmative action (2m20s).
• The court also discarded the Chevron Doctrine, a critical four-decade-old precedent concerning how Regulatory Agencies work (2m31s).

Trump's Reshaping of the Judiciary

• Trump's promise to reshape the Judiciary was a successful argument on the campaign trail, and he has delivered on that promise, reshaping the Judiciary from top to bottom (2m55s).
• The federal court system is structured with 94 district courts around the country, where trials take place, and cases can be appealed to higher courts (3m46s).
• Trump's impact on the federal courts will be felt for years to come, and if elected again, he could continue to reshape the Judiciary in significant ways (3m40s).
• The US federal court system has multiple layers, with the Supreme Court at the top, 13 circuit courts of appeals below it, and district courts at the bottom, handling around 300,000 cases per year (3m57s).
• The Supreme Court hears around 100 cases a year, while the circuit courts handle around 40,000 cases, making the decisions of the lower courts final in most cases (4m16s).
• There are around 900 active federal judges, and former President Trump appointed 234 of them, reshaping the courts (4m32s).
• Trump's ability to appoint many judges was due to Senate Republicans, led by Mitch McConnell, stonewalling Obama's judicial nominees for four years, leaving many vacancies (5m7s).

The Role of the Federalist Society and Leonard Leo

• McConnell has admitted that filling court seats was his top priority once he had a president he liked, as he believes it makes a long-lasting contribution to the country (5m27s).
• Right-wing groups, particularly the Federalist Society led by Leonard Leo, have been focused on getting conservative judges onto the bench for years (5m57s).
• Leonard Leo has been instrumental in moving the judiciary to the right through his leadership at the Federalist Society and his dark money network, which funnels cash to conservative groups and politicians (6m2s).
• Leo has used tactics such as donor-advised funds to conceal the movement of money, making it practically impossible to trace where the money goes and where it comes from (6m36s).
• Many entities linked to Leo have not been required to disclose their donors, and he has been evasive when asked about the purpose of his charitable organization, the BH Fund (6m48s).
• Leonard Leo, a key figure in the Federalist Society, has been instrumental in shaping the federal court system by recommending conservative judges, including Supreme Court nominees, who are against regulation and deeply socially conservative (7m50s).
• Leo helped supply President Trump with 25 names of potential Supreme Court nominees, and some of these nominees, including Kavanaugh, Gorsuch, and Barrett, have been appointed to the bench and have made significant decisions, such as overturning Roe v. Wade (8m11s).

Conservative Legal Tactics and Judge Shopping

• The left has long been concerned that the appointment of conservative judges would lead to the overturning of Roe v. Wade, and this concern has been justified by the actions of these judges (8m24s).
• Conservative groups, some of which are funded by Leo, have been able to effectively "judge shop" by writing lawsuits designed to achieve specific policy ends and bringing them before district court judges who are sympathetic to their cause (9m25s).
• This tactic has been made easier by the increasing number of conservative judges on the federal bench, including those appointed by Trump and recommended by Leo (9m31s).
• The case of the Alliance for Hippocratic Medicine, which challenged the use of the abortion drug mifepristone, is an example of this tactic, as the lawsuit was filed in Amarillo specifically to draw Judge Matthew Kacsmaryk, a Trump appointee with a conservative track record (10m28s).
• Judge Kacsmaryk has made public statements indicating his conservative views, including calling being transgender a "delusion" and arguing against contraception and same-sex marriage (11m31s).
• A case involving the FDA's approval of Mifepristone, a medication used for over 20 years, was brought to court by pro-life doctors who argued that the approval should be withdrawn, citing potential harm to themselves in treating patients with adverse health effects, despite a federal law already protecting them from having to provide such care (11m47s).
• The doctors' argument was deemed weak, and they couldn't identify a single case where they were forced to provide abortion care, yet the judge, Kacsmaryk, sided with the plaintiffs, striking down the FDA's approval (12m33s).
• The government appealed, but the ruling was upheld by the conservative Fifth Circuit Court of Appeals, where a third of the judges are Trump appointees (12m47s).
• The Supreme Court ultimately reversed the ruling, stating the plaintiffs lacked standing to sue, but the decision left the door open for future challenges (13m7s).

Neil Gorsuch and the Anti-Regulation Movement

• The courts are increasingly amenable to lawsuits brought by conservatives, and a significant conservative victory this year concerns regulation, with companies and certain Supreme Court members, like Neil Gorsuch, sharing an attitude against regulation (13m47s).
• Gorsuch has argued that regulatory agencies are out of control and making up new laws, and has delivered a book and speeches on the topic, citing examples of federal agencies creating new laws and regulations (14m7s).
• Gorsuch's argument is that federal agencies, which fall under the executive branch, have usurped the power that rightly belongs to the legislative branch, and that this has led to an overreach of regulatory power (14m13s).
• Examples cited by Gorsuch include regulations on food, mattresses, and lobster imports, which he argues demonstrate the executive branch's overreach (14m37s).
• Gorsuch's views on regulation have been influential, and his book and speeches have helped to shape the debate on the role of regulatory agencies in the US (14m1s).
• The Gorsuch example of regulations, including the "woodsy the owl thing" and the Lacy Act, were actually laws passed by Congress, not examples of an out-of-control executive branch (15m55s).

The Overruling of the Chevron Doctrine

• The FDA's regulation of catchup, which directed the agency to prevent mislabeling of foods, was a result of a law passed by Congress and was implemented after extensive review and public comment periods (16m10s).
• Regulations like these are not generally enforced unless the violations are egregious, and in a recent 10-year period, the FDA only obtained two court injunctions against food products for misleading labeling (16m26s).
• The mattress tax, which Gorsuch made fun of, was actually a law passed by Congress directing a federal agency to set flammability standards for products like mattresses, including labeling them (17m3s).
• The mattress tags, which may seem unnecessary, can actually help consumers figure out if their mattress has been recalled, such as in the case of a foam crib mattress by Stor Craft that was recalled for failing to meet federal standards for flammability (17m25s).
• Regulations are not being issued arbitrarily, but are carefully crafted by career experts to keep people safe, and the work of these experts will be significantly harder due to the case overturning the Chevron Doctrine (18m11s).
• The Chevron Doctrine, which was established in a 1984 Supreme Court ruling, states that judges should give a lot of leeway to agencies when there is a lawsuit over regulation, and has been a foundation of American law, being cited in over 18,000 federal court decisions and being the deciding factor in approximately 70 Supreme Court decisions (18m26s).
• Getting rid of Chevron is not just removing one part of the regulatory system, but is essentially removing the entire foundation that American law has been built on (19m5s).
• A recent Supreme Court ruling in the case of Lopa Brigh versus Rondo overturned Chevron deference, making it easier for companies to challenge regulatory agency decisions in the future (19m14s).
• The case involved a group of fishermen who were trying to overturn a regulation requiring them to pay for federal monitors to prevent overfishing, despite the regulation not being enforced and the fishermen not identifying a single fishing trip that would have been affected (19m20s).
• The fishermen were represented by two conservative groups, one of which is backed by entities linked to Leonard Leo (19m55s).
• Several major industries, including the US Chamber of Commerce and the North American Meat Institute, wrote amicus briefs in support of the fishermen, and their interests were ultimately successful in the Supreme Court ruling (20m17s).
• The ruling has sharply limited the power of regulatory agencies, and conservatives are pleased with the outcome, with Representative Jim Jordan arguing that it is a victory for elected officials over unelected "experts" (21m6s).
• However, critics argue that the ruling will make it more difficult for regulatory agencies to do their jobs, and that it will lead to more nationwide injunctions based on personal opinions of judges rather than expertise (22m32s).
• The ruling has significant implications for the government's ability to regulate industries and protect the public interest, and it is seen as part of a broader trend of limiting the power of regulatory agencies (22m49s).

Consequences and Future Implications

• A Schoolhouse Rock video does not accurately depict the power of federal courts, as judges can make decisions that contradict the will of Congress and the President, and these decisions can have significant consequences (22m51s).
• An analysis found that the Supreme Court's decision in the case of Lopa Bright has already been cited in 116 cases, and judges have used it to block the implementation of a new rule that would prohibit discrimination in healthcare based on gender identity (23m2s).
• Judges are not always equipped to answer highly technical questions, as evidenced by Neil Gorsuch's confusion between nitrous oxide and nitrogen oxides in a recent decision (23m31s).
• The impact of recent Supreme Court decisions has been significant, with one justice on the losing end of 6-3 decisions stating that they have cried alone in their office after announcements of cases (23m51s).
• Members of Congress have introduced bills to try to undo some of the harm caused by these decisions, but they have gone nowhere due to Republican control of the House (24m24s).
• The only way to undo some of the harm and prevent more from happening is to keep Trump out of the White House and Republicans out of Congress in November (24m38s).
• Trump's intentions are clear, and he has promised to appoint more conservative judges to the Supreme Court, potentially cementing a conservative supermajority for a generation (24m42s).
• The oldest justices, Thomas and Alito, may step down in the next four years, giving Trump the opportunity to appoint new justices and further solidify the conservative majority (24m52s).
• Securing the White House and Congress is the best shot at starting to slowly undo the changes made to the judiciary and preventing further harm (26m10s).
• People who value an independent Judiciary and the rule of law may prevent Leo and his backers from easily buying the justice system (26m38s).
• As a result, Leo may need to find alternative ways to spend his money (26m47s).
• A suggested alternative use for the money is a trip to see the spectacular legs in Texas, which are reportedly interesting and big (26m50s).