Justice Kavanaugh Grants Holdover Tenants A One-Month Reprieve From The Law

This may be the most Kavanaugh concurrence I have ever read.

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Earlier today, I observed that Chief Justice Roberts and Justice Kavanaugh were the only members to be in the majority of three cases. The streak continues. This evening, the Supreme Court refused to put the eviction moratorium on hold. The vote was 5-4. Really it was 2+3-4. The Chief and Justice Kavanaugh joined the Kagan-3. Justices Thomas, Alito, Gorsuch, and Barrett would have granted the application.

Justice Kavanaugh wrote a one paragraph concurrence. He found that the CDC is acting without statutory authority. But, because the CDC moratorium will wind down "in a few weeks, on July 31," he would not intervene now. Here is the paragraph, in its entirety:

 I agree with the District Court and the applicants that the Centers for Disease Control and Prevention exceeded its existing statutory authority by issuing a nationwide eviction moratorium. See Utility Air Regulatory Group v. EPA, 573 U. S. 302, 324 (2014). Because the CDC plans to end the moratorium in only a few weeks, on July 31, and because those few weeks will allow for additional and more orderly distribution of the congressionally appropriated rental assistance funds, I vote at this time to deny the application to vacate the District Court's stay of its order. See Barnes v. E-Systems, Inc. Group Hospital Medical & Surgical Ins. Plan, 501 U. S. 1301, 1305 (1991) (Scalia, J., in chambers) (stay depends in part on balance of equities); Coleman v. Paccar Inc., 424 U. S. 1301, 1304 (1976) (Rehnquist, J., in chambers). In my view, clear and specific congressional authorization (via new legislation) would be necessary for the CDC to extend the moratorium past July 31. 

This may be the most Kavanaugh concurrence I have ever read. First, he feels the need to explain himself in any case that could reach a conservative result. On the one hand, he is solid on admin law. (Thanks Don McGahn!) On the other hand, he declines to take actions that could put those principles into effect. I am tired of these apologetic soliloquies.

Second, his rationale for moderation doesn't hold up. The application was filed on June 3. The response was due on June 10. The application has been pending for 19 days. It did not take 19 days to write a one-paragraph concurrence. No one wrote a dissent in response. The Court was no doubt hoping Biden would decline to extend the moratorium so the case would go away. But the administration did extend it. And with 31 days remaining on the order,  Justice Kavanaugh now says there are only a "few weeks" left. (I think in common usage, a "few weeks" has to be less than a month.) Therefore, he will decline to grant relief. If the Court moved with alacrity, the rule of law would have already been restored. This case reminds me of Danville Christian Academy. The Court sat on the application, and then dismissed it because the academic year was almost over.

Third, Justice Kavanaugh issued a clear ultimatum to the Biden Administration: if you extend the moratorium one more time, I'll flip my vote. Congressional authorization is not needed now. But come August 1, I'll boof up your executive action. In effect, Justice Kavanaugh is telling Biden to go to Congress, or throw 6 million people on the street. Just like he lectured the Governor of Mississippi to grant clemency to Brett Jones. It is none of the Court's business what the other branches do. Justice Kavanaugh's warning is reminiscent of Justice O'Connor's 25-year clock in Grutter. The Constitution does not take a sabbatical during a pandemic, Justice Gorsuch reminds us.

Disclosure: I recently filed an amicus brief in the 5th Circuit eviction moratorium case on behalf of the Cato Institute.

NEXT: Supreme Court Refuses to Block CDC Eviction Moratorium - But also Signals Majority of Justices Believe the Moratorium is Illegal

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  1. I regret that the court granted cert in the 2nd amendment cases. No knowing what pliant Kavanaugh will give us.

    1. I will save you some time—the Court will eventually find a right to carry a gun outside the home…but it will be subject to such heavy regulations as to make the right fairly meaningless. So NYC will be able to prohibit carrying near schools and there will be so many schools that one would always be in a school zone.

      1. Kind of like what’s happened with abortion. On paper, the right remains firmly in place. In practice, states that don’t like it can regulate it to death.

        1. Krykry. The parasite is the lawyer client. Rent seeking overrules all ideology of the lawyer.

        2. I don’t deny that many states *want* to regulate it to death, but I don’t think they have been able to. At least not until the SC makes their next decision.

          Compare Texas (55,000) to New York (77,000). The rate is somewhat less in Texas, but it’s not close to being eliminated, and there is enough cultural difference that it could possibly be explained by fewer women wanting an abortion.

  2. Gosh I feel so badly for Prof. Blackman that he must delay his joy and satisfaction a few week until millions of people are going to be evicted. All of us recognize the angst and disappointment of the Professor who thought he would soon get to see families by the boatload tossed onto the streets with no where to go but under the underpasses. But not to worry Professor, the day is coming when you can revel in the misery and hardship of the dispossed.

    (and before anyone writes their nasty notes, please note that I was opposed to the moratorium not only on legal grounds but on economic ones as well, that the moratorium would leave both landlords and tenants worse off in the long run.)

    And who would have thought that Justice Kavanaugh would show a little decency and compassion, he being a card carrying Trumpy.

    1. Firstly, most of these people are not families, but households headed by a single non-white woman.

      Secondly, they had plenty of money to pay their rents with, with all of the stimulus and enhanced unemployment. But they instead chose to blow that money on flat screen televisions and sail phones.

      1. You forgot to add how many Cadillac’s they bought also.

        Man, dontcha just love it when the racists come out and play.

        1. The real racists are those who don’t acknowledge the differences between the races. Because they are inherently degrading whites.

          1. You do plenty to degrade whites without any help from “them”.

            1. Great comment!

    2. finkel’s world collapses around him.

    3. Lol, no. Kavanaugh is a Supreme Court justice because George W Bush called Collins personally and urged her to support him. Kavanaugh, ACB, and Roberts are card carrying Bush loyalists that will use their political capital to overturn Roe v Wade and in the future restore the Bush dynasty by installing George P Bush as president.

    4. You want me to feel sorry for millions of people who got to live in other people’s houses for free for over a year?

      1. This rent moratorium should not have been allowed to happen. It was worse than illegal, it was stupid. But once it did happen the Roberts decision was the correct one.

        1. The CDC made a proclamation, which somehow became law. No legislation. And the USSC just voted to make that the law of the land. It was a terrible decision, and I don’t know how a sentient being doesn’t see that.

        2. What if the moratorium is extended again? Would the court be correct in allowing it to continue? If the CDC decides to continue it indefinitely (via continuous 30-day extensions) should the court go along with it?

          At some point the Band-Aid has to come off, and I don’t see a big difference between now or a month from now, other than leaving it in place for another month basically means the court never has to issue a decision (it can just dismiss the case as moot if the order is not extended) which is a pretty weaselly thing to do for a body supposedly devoted to justice

          You also know of course that even if the order were struck down today most of these eviction wouldn’t even occur until next spring, giving the tenants 2 full years of free rent

      2. Yes. Being evicted/homeless sucks regardless of whether it was delayed for a year.

        I also feel sorry for landlords who didn’t get rent for a year.

        It’s really not that hard to feel some empathy for people in difficult circumstances.

    5. So you basically agree with Blackman but are going to invent a reason to whine anyway.

  3. This isn’t a comment on the merits of the post, but I have trouble seeing how 4.5 weeks isn’t fairly described as “a few”, in common usage or otherwise.

    1. I think few works for four, too. If few can’t be four or five, then it’s basically just limited to three since couple is two. And at that point, if a few weeks means specifically three weeks, you might as well just say three weeks.

      I’d be interested in a scholarly examination of the historical lines separating few, several, and many.

    2. I think the argument is that when a few hours exceeds 24, you speak of days, and when a few days exceeds 7, you speak of weeks, and when a few weeks exceeds 4, you speak of months.

      That it’s no longer ‘a few’ when enough piles up to use the next unit.

      So, we’re not talking “a few weeks” here, but instead “over a month”.

      Let me mull it over for a few thousand seconds, though.

      1. I think that depends on how big the jump is between scales.

        For example, I think general usage accommodates ‘a few feet’ describing distances of up to … several yards :-). Well past 4 feet, anyway.

        1. I could see the argument for saying that you don’t need to switch units until you’ve got more than one of the next sized unit; Once you’ve reached 24 inches, you’ve got a couple of feet, for instance.

          But we’re not discussing when it’s appropriate to call something weeks, but rather ‘a few’ weeks, and I think I’ll stick by the position that, once you’ve accumulated enough weeks to exceed a month, they’re no longer relevantly “few”.

          None of which changes that it is an outrage for the Court to notice that huge numbers of people are having their rights violated by an illegal government action, and not see the point in letting the injunction against it resume.

          Kavanaugh didn’t express the opinion that the case was a close one, and so didn’t need to be resolved immediately. He agreed the CDC’s action was illegal! And then decided it wasn’t a big deal if the CDC continued illegally violating the rights of thousands upon thousands of Americans for another month.

          Kavanaugh, like many in the legal system, just doesn’t take rights violations by the government seriously. They’re an abstraction to him. The law is a game, the gains and losses mere counters, not the ruination of people’s lives.

          People, and no few people, will go into bankruptcy because of his few weeks. They’ll find their financial situations forever worsened, their options reduced, they will be poorer for the rest of their lives than if he had consented to allow the injunction to be restored.

          The mighty forget that the less mighty actually feel the consequences of their decisions.

          1. “But we’re not discussing when it’s appropriate to call something weeks, but rather ‘a few’ weeks, and I think I’ll stick by the position that, once you’ve accumulated enough weeks to exceed a month, they’re no longer relevantly “few”.”

            Well, I think you are in a minority. My sense of general usage is that if, say, someone asks how long until your vacation starts and you answer ‘a few weeks’, very few people will be surprised if your vacation starts in six weeks.

            Note that I’m not commenting on the legal issues or your personal language preferences; only that I have lived in various places across the country and you are the first person I have encountered who feels it is an error to describe five or six (or probably ten) weeks as ‘a few weeks’.

            “Once you’ve reached 24 inches, you’ve got a couple of feet, for instance.”

            Lots of quirks … it’s a ’12×15′ tarp, as in feet, not a ‘4×5’ tarp measured in yards. Or go to homedepot.com and search for levels … they sell 24 inch levels, 48 inch levels, 72 inch levels, and so on. Search for ‘2 foot level’ and you get … 24 inch levels. That’s not to say you’ll get looked at funny if you’re at a job site and talk about a ‘four foot level’. People are more flexible than the rigid rule you are proposing.

            (baby ages are another interesting example: IMHE it’s quite unusual for the parents of a 15 month old baby to say ‘she’s a one year old’. They seem to keep measuring in months for … ‘a few’ … years. Of course, when you’re getting by on 3 hours of sleep a night, it probably seems like a really long time)

      2. When would one ever use weeks? The unit is solely applicable to one and one only. Two, and one is then speaking in fortnights.

    3. I think it relative to the universe of possibilities. A few feet could be a lot more feet that a yard but probably not a mile. A few hours may be more than a day in the context of something much longer like say a war. A few people could be more that 15 of 20 because there are potentially billions of people. I recall a scripture that referred to a group of a few people as eight.

      It is Peter 3:20 of the King James Bible: “Which sometime were disobedient, when once the longsuffering of God waited in the days of Noah, while the ark was a preparing, wherein few, that is, eight souls were saved by water.”

  4. Example number infinity of why people hate our legal system and lawyers. The CDC never had the legal authority to issue the moratorium and yet, it is ratified by our Chief Justice, joined by the Stockholm Syndrome Justice.
    I thought the Constitution did not allow impairment of contracts AND that Courts existed to protect the people from the government. It’s going down the sliding slope faster every day.
    God help us.

    1. I thought the Constitution did not allow impairment of contracts

      1) The Constitution says that no state shall pass a law impairing the obligation of contracts. The CDC is not a state (and does not derive its authority from a state.)
      2) This law doesn’t impair the obligation of contracts anyway. It denies a remedy if the contract is breached. This would more appropriately be understood as a taking than as an impairment of contracts.

      1. No matter which legal theory makes more sense, the one that DOESN’T make sense is how the CDC has the authority to insert itself into rental agreements. And now the USSC validated that.

      2. 1) The Constitution doesn’t say the federal government can’t do a lot of things it never gave the federal government power to do in the first place. The states have, depending on the details of their own constitutions, every power that wasn’t either reserved to the federal government, or specifically denied them. So that specifically denying the states powers constitutionally makes sense.

        The federal government, by contrast, is only supposed to have the powers it is delegated. So the Constitution doesn’t NEED to deny the federal government powers, only deny certain uses of them.

        2) However you approach this, the CDC was in the wrong, all that varies is theory under which they’re wrong. But the Court still let them do it.

    2. You’re a practicing attorney. You know how our judicial system works and why it works like it does.

      And yet you post naïve crap like this. You know how the Contracts Clause works, and you know why this delay was granted. And you know why the judiciary exists, (did you forget it’s creation was pre-Maurbury?) and how since the government is the people, it’s about protecting the minority from the majority.

      I don’t think the moratorium makes a lot of sense either, but I’ll attack it based on scope of authority, not whatever leagalish bloviating sounds good to me at the moment.

  5. The landlords can write it off their income tax as a business loss, which means the taxpayers will mostly pick up the tab. And no, that’s not the same as having the tenants pay rent, but it will alleviate some of the sting.

    1. It’s not a “sting”. It’s a massive blow for some people.

      Small landlords own a decent chunk of the rental market. And 30% of them are low to medium income (<$90,000 a year in total income). These rental properties make up 20% of their income on average. In addition, the rent goes towards the property taxes, mortgage, and insurance on the property. Usually it's at least 50% of the rent. The owner is STILL on the hook for these costs

      https://www.brookings.edu/blog/up-front/2020/09/21/an-eviction-moratorium-without-rental-assistance-hurts-smaller-landlords-too/

      1. Yes, rental assistance would have made a lot more sense, particularly because it could be better targeted. This is what a lot of other countries did. Since we hate “welfare” here, we just get to decides who suffers in the face of massive losses of income–the renters or the landlords.

        Worth noting, though, that many landlords wouldn’t be able to find new tenants given the circumstances so likely would have faced similar problems in any case.

    2. Krychek – “The landlords can write it off their income tax as a business loss, which means the taxpayers will mostly pick up the tab. And no, that’s not the same as having the tenants pay rent, but it will alleviate some of the sting.”

      Its a good thing Krychek doesnt practice tax law. There is no such thing in the IRC for a deduction for lost rent (or lost wages , lost revenue) for a cash basis taxpayer.

      Even if there was such a deduction, the landlord still picks up most of the tab. The “taxpayers dont pick up most of the tab until the combined federal and state tax rates exceed 50%.

      1. I don’t practice tax law, but how is that not a business loss?

        1. To incur a tax loss and/or deduction, the taxpayer has to have “basis” in the expense. Since the revenue was never received, the taxpayer does not have basis in the lost rent, lost revenue and as such is not entitled to a deduction.

          the only deduction allowed is the operating expenses, interest, depreciation. The uncollected rent does not become an additional deduction.

          1. Again, I don’t practice tax law, but I suspect a creative tax lawyer could either re-brand it as credit extended to the tenant that was never repaid, or lost opportunity since another tenant may have paid the rent, or loss due to regulatory taking, or something. With as much creative tax accounting as goes on, I would be surprised if there’s no way at all to claim it as a loss.

            1. A tax lawyer who advises such things won’t be a lawyer for long.

              And the client will be in prison.

              Its just income you never received. No different than if the unit was vacant.

              1. No it’s not the same as a vacant unit. A lived-in unit depreciates faster than an empty unit. There are costs associated with a lived-in unit. And, hovering over all of this is the fact that the income wasn’t received because of government action.

                The bottom line for me is that people who lost their jobs needed relief, but the landlords should not be expected to bear the freight for it. If there’s a moratorium, fine, but the government that imposed it needs to help the people who suffered from it. Maybe not through the tax laws.

                1. Krycheck comment – “No it’s not the same as a vacant unit. A lived-in unit depreciates faster than an empty unit. There are costs associated with a lived-in unit. And, hovering over all of this is the fact that the income wasn’t received because of government action.”

                  For income tax purposes, it is essentially the same as a vacant unit.

                  Your second point indicates that you may not be familiar with the residential rental market. While there are exceptions, non paying tenants have significantly higher rates of property damage, along with greater wear and tear on the property than paying tenants. It is directly related to behaviors associated with the type tenants that are late and/or non-paying tenants.

                  Lastly I will and that a high percentage of the renters not paying rent “due to covid” are those that would normally be the type deliquient with the rent and are using the covid eviction mortatorium as an excuse to delay payment. ie behavior characteristics that are consistent with financial irresponsibility. (this last comment is based on my experience in the rental market and discussions with other residential landlords)

                  1. ” While there are exceptions, non paying tenants have significantly higher rates of property damage, along with greater wear and tear on the property than paying tenants.”

                    Preach it! When I rented my house in Michigan out, (Because I’d had to move out of state for a job.) my tenants skipped town on me without paying their last month’s rent. I probably spent more than 6 months rent repairing the damage they’d done.

                    1. I will add to your comment that most of the commentators supporting the eviction mortatorium have a detachment from reality.

                      Another common comment is that the rent remains due. Yet they dont comprehend that the collectibility of the unpaid rent is near zero for rent more than 60 days late.

                2. “No it’s not the same as a vacant unit.”

                  The lack of income is the same thing for tax purposes.

                  You can deduct or amortize the repair costs and depreciation of course. But you cannot deduct loss of income.

                  If a client fails to pay your fee bill, do you deduct that?

  6. Always one justice away from getting everything you want.

  7. Josh Blackman is being narcissistic.

    Those millions of people who will be evicted have names and faces. The lives that will be disrupted and the damage done to some people will have permanent consequences. Most of the time of the negative variety. A month to decrease the number of people negatively impacted is extremely worthwhile to those who care about practical consequences.

    But, in contrast, Blackman thinks his feelings of being “tired of … apologetic soliloquies” actually matters even a tiny little bit. It does not. If we want to talk about emotions, let’s contrast the emotional trauma of those that Blackman would prefer to see evicted in a hurry to his being “tired” based on his personal beef with Kavanaugh.

    Here is a thought. Maybe you shouldn’t be in the law at all if you forget that the law impacts actual humans.

    1. Those millions of people who will be evicted have names and faces. The lives that will be disrupted and the damage done to some people will have permanent consequences. Most of the time of the negative variety. A month to decrease the number of people negatively impacted is extremely worthwhile to those who care about practical consequences.

      This is silly. Millions of people were not going to be evicted in less than a month’s time if the stay were lifted immediately. Even if landlords wanted to evict millions of people, it couldn’t happen that quickly. Also, you don’t seem to be concerned about the property owners negatively impacted.

      1. You mean the property owners who have been allocated billions of dollars in rental assistance dollars by Congress?

        As far as the number goes, according to the US Census Bureau, about 6 million households report being behind on their rent. So, the impact of even 1 month to enable a smoother transition is very large and of much more emotional significance than Blackman’s “tiredness” with Kavanaugh taking practical consequences into account. If we have to compare the emotional trauma of a large number of people being evicted to the emotional “cost” of Blackman being “tired” I don’t think the math is very hard. Regardless of whether you want to quibble with my numbers or not.

        And I have to wonder, just as a matter of effectiveness. If a person wanted to advocate for a particular interpretational methodology with regard to the Constitution or statutes, how is taking an extreme approach that unnecessarily maximizes that costs and minimizes the benefits of that approach even slightly intelligent??? Blackman seems to be doing his very best to discredit his own approach to the law here. At the very least, Blackman can spare us any discussion of his “feelings” when advocating for a result that would lead to earlier evictions of a large number of people. Given the stakes, thinking that his own “tiredness” matters at all is borderline narcissism.

        1. Clearly the court should have ordered them quartered in your personal domicile without compensation. They aren’t soldiers, so this is probably OK. And even if they were soldiers, the 3rd amendment doesn’t define “time of war” so we are all good here, and besides the fight against COVID is just like a war. Close enough. In any case they could penalize (um I mean tax) you into “consenting” anyway.

          Obviously compassion should be the controlling principle here, not rule of law. Eviction is harsh on those evicted at all times, but if you don’t enforce property rights you won’t have landlords or properties for rent.

          1. Rather than “court” I should have said “CDC”, who is the entity that ordered the moratorium and presumably could have ordered basically anything.

            (gosh @EV I wish the forums had an “edit” button)

        2. Who cares what has been allocated? They haven’t received any money for the most part. The government has a right to seize for public use, but must provide compensation. The latter part has been violated. End of story.

        3. Welker comment – “You mean the property owners who have been allocated billions of dollars in rental assistance dollars by Congress?”

          The Act provides that the funds go to the tenant. There are provisions that the tenant can authorize the funds go directly to the landlord, but the tenant must authorize the distribution of the funds to the land lord. bottom line, the tenant retains full control as how the funds are actually distributed.

      2. “concerned about the property owners negatively impacted.”

        Pity the poor landlords, having to wait a few weeks to resume their passive extraction of rents from their working tenants. In the meantime, maybe they should get a real job – I’ve heard places are hiring.

        1. “Pity the poor landlords”

          No landlords, no place for the tenants to live.

          Fewer landlords, higher rents for the tenants of remaining units.

          1. They seem to have a place to live right now without landlords being paid. Land and housing have existed long before landlords, and they will continue to exist after. If anything, the removal of parasitic middlemen would have the general affect of reducing costs.

            1. “Land and housing have existed long before landlords”

              Those caves were sure cozy.

              Rental properties go back at least to Rome in the West.

          2. If I were a residential property landlord and could convert my unit to a condo (and sell) I’d do it in a heartbeat. Arbitrary suspension of rule of law on shaky grounds isn’t good for anyone. Evicting non-paying tenants is quite difficult in many states as it is.

            For those who think this is good policy, commandeering your back yard for trailers for those needing homes and putting folks in your spare bedrooms sounds like a good plan to me.

            IMO if you want to force there to be no evictions for non-payment during a health emergency, the fair way to do it is to compensate (make whole) landlords directly. This spreads the cost across the entire tax base rather than focusing on those unfortunate enough to be renting property to others. That of course is abusable, but at least it is fairer.

            1. Relevantly:

              And Now Prices Are Really Soaring: June Rent Jump Is Biggest On Record

              And why not? Now you have to factor in not just the cost of the unit, but the absurdly high probability that you won’t be permitted to collect the rent.

              Yeah, any sane landlord is now looking to sell… as soon as they can empty the unit, anyway.

              1. I’m not sure that you are correct as to the reason for rent jumps. I’m glad not to be a landlord, but if I were I doubt that my biggest fear would be another eviction moratorium. Though perhaps landlords are trying to recoup losses from non-paying tenants. And presumably it is also a supply and demand balance…

                1. Once you’ve gotten one eviction moratorium, you have to forever factor the possibility of another into your prices.

                  But I’ll agree, part of the rent jump is just that the currency is declining in value relative to everything; Inflation is back with a vengeance.

      3. David Nieporent comment – “This is silly. Millions of people were not going to be evicted in less than a month’s time if the stay were lifted immediately. Even if landlords wanted to evict millions of people, it couldn’t happen that quickly. Also, you don’t seem to be concerned about the property owners negatively impacted.”

        Concur
        The minimum time to evict in a pro property owner state such as Texas is 6-8 weeks even with a complying tenant. With a non complying tenant (filing court objections, etc) it can take 6 months.
        My understanding in pro tenant states such as NY, it can take 4-6 months minimum.

        Those time are under normal circumstances. When the mortitorium is lifted, the court dockets are going to be full, so add an additional month or so.

    2. Where did the 600/week in extra unemployment, and 3,200 per person in “stimulus” go? To sail phones?

    3. “A month to decrease the number of people negatively impacted”

      The same number of people will be affected now as in a month. Maybe more if more tenants stop paying

      The effects of their failure to pay [eviction] is just being delayed. They will be deeper in debt and still eventually being evicted.

    4. The millions of hungry people who we don’t just permit to walk into restaurants, order a meal, eat, and skip out on the bill, also have names and faces. The millions of people who we don’t let walk onto the lots of car dealerships and drive off with a car without paying have names and faces.

      Every last person who might personally benefit from violating the property rights of somebody else, has a name and a face.

      Does this mean we should let them commit the crime?

      That’s what it comes down to here: The CDC told tenants that they could cheat their landlords. The honest paid anyway, the less honest took advantage of it.

      And you’re asking us to sympathize with the cheats.

    5. The federal government is acting outside of its constitutional authority, robbing people under threat of violence. They have no consent of the governed and they have no legitimacy, period. They are thugs and tyrants.

      The communist appropriation of private property is bad enough, but if it were done by a state pursuant to legislation, it would be 100x more tolerable.

  8. Kav continues to be worrisome.

    Oh well, he will have to fall a long way to be worse than Tony.

  9. Shorter Kavanaugh:
    “It’s wrong to molest a young woman at a drunken frat party, but the lads will soon be sober and will stop. No action is necessary,”

  10. I would much preferred if the Court had decided the moratorium was illegal but set a time for it’s to end, even if it was the current expiration date. That would have prevented the likely extension due to rising Covid cases due to the Delta variant.

  11. Thank you for noting the over-stepping of the court on Jones v MS.
    I took abandoned and indigent Brett Jones under my wing walking with him through hell so he wouldn’t have to be scared and alone when he went to prison for life as an 8th grade child. That was 16 years ago.

    Shock doesn’t begin to describe our reaction to Jones v Mississippi, plus the knife twist at the end of the opinion for good measure. As Justice Kavanaugh set Brett’s lwop sentence in stone, he suggested that it wasn’t the end of the road for Brett in Mississippi. He said the Court’s decision allows Brett to present moral and policy arguments to the proper authorities why he shouldn’t spend his whole life in prison from 8th grade on. I wrote to all 9 Justices to explain to them that in Mississippi all avenues they suggested, Legislature, State Court and Governor are all but closed to Brett.

    In a decade since Miller, the MS legislature hasn’t passed a single measure or provision allowing parole for juvenile lifers. In fact, the 2021 legislative session passed a big parole bill but the Gov signaled he wouldn’t sign any parole bill that included any measure of relief for jlwop-ers. All such measures were removed from the bill. The bill goes into law tomorrow minus jlwop-ers.

    State Court is not a realistic option for Brett since we are broke, exhausted and hopeless after a 16 year fight for his life culminating in Lucy pulling the football out when we finally reached the summit where rights are supposed to be protected and settled law is the cornerstone of our justice system. Rules aren’t supposed to change mid game or with the changing of the justices.

    The Governor of Mississippi, Tate Reeves, is not and has not ever accepted applications for clemency or pardons. Gov. Bryant before him, also did not accept applications. It’s been over a decade since the Governor’s office in MS has accepted parole applications and no indication that will change any time soon.

    My letter to the Justices asked for their help in light of their suggestion that Brett Jones can get relief from this illegal sentence that they ignored (8th A lwop is cruel punishment for a juvenile). I requested a recommendation for a commutation which seemed like the best chance of the slim and none possibilities stated in Kavanaugh’s opinion and I thought they should help.

    The only justice that wrote back was Chief Justice Roberts. The letter was from the Office of the Clerk, Scott S. Harris. Enclosed was my original letter and an 8th grade school picture of Brett from Independence Middle School, Jupiter, FL (his last) that I sent with my letter. I guess they didn’t want any of this in the file.

    Chief Justice Roberts referred my letter to the Clerk who regretted to inform me that the Court is unable to assist in the matter present. “Under Article III of the Constitution, the jurisdiction of this Court extends only to the consideration of cases or controversies properly brought before it from lower courts in accordance with federal law and filed pursuant to the Rules of this Court.”

    I wrote the Chief Justice back that I appreciated his response but I was under the impression that we were properly before the Court when our Cert was granted on March 9, 2020; and that I was writing in reply to that court decision. I explained to him that I was reaching out to him not as Chief Justice of the Supreme Court but as a fellow human being who cares about what happens to his fellow human beings on this shared Earth, where we are all one and interconnected. I quoted MLK “Never, never be afraid to do what’s right, especially if the well-being of a person or animal is at stake. Society’s punishments are small compared to the wounds we inflict on our soul when we look the other way.” I told him this Court looked the other way when it came to requiring judges to use facts when applying the law leading to cruel punishments heaped upon children.

    I again asked the Chief Justice, since it was on the Court’s suggestion, to help persuade Gov. Reeves to commute Brett’s sentence to life with parole so he can go in front of a parole board during his lifetime. Without divine intervention of some kind (the Chief Justice being divine on Earth) Mississippi will continue to torture Brett burying him even further in the ground. OTOH, the maybe all we’ll get is the FBI knocking.

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