SCOTUS Watch

[Kurth]

Kennedy case decision is in. Guess what? Coach has a Constitutionally protected right to pray at the 50 yard line at a public high school football game.

Shocker!

[malchior]

The first part of the establishment clause is pretty much dying. I'm hearing initial reaction that they went well beyond the question *again* and took an expansive radical position.

Edit: I just skimmed Thomas's concurrence because he usually is the most extreme. It is. He essentially says..."we left everyone hanging...we should have clarified all the past free exercise jurisprudence was wrong. And we didn't explain that public employers have been trampling on their free exercise rights all along."

[Isgrimnur]

[malchior]

How dumb of us not to realize that religious conduct was held to a different standard than secular conduct. Those dummies before us interpreted it wrongly that way for 250 years.

[Unagi]

Time to impeach!

Rep. Alexandria Ocasio-Cortez on Sunday said she believes it's an "impeachable offense" for a Supreme Court justice to lie under oath.

...

Ocasio-Cortez, speaking in an interview with NBC News' "Meet the Press," said she believes the court is facing a "crisis of legitimacy" and justices must face consequences if they lie under oath.

"If we allow Supreme Court nominees to lie under oath and secure lifetime appointments to the highest court of the land and then issue, without basis," she said, "we must see that through. There must be consequences for such a deeply destabilizing action and a hostile takeover of our democratic institutions."

"To allow that to stand is to allow it to happen," she continued. "And what makes it particularly dangerous is that it sends a blaring signal to all future nominees that they can now lie to duly elected members of the United States Senate in order to secure Supreme Court confirmations and seats on the Supreme Court."

That she believed what they said under oath is more telling of her than them. Hopefully lesson learned for next time, although it's likely too late now.

I don't imagine that AOC believed them.

[malchior]

Sotomayor puts pictures in her dissent to drive home the point that Gorsuch's narrowing of the schism to the above is not grounded in the facts. It's like calling the case on a snap shot of what happened out of context. She further goes on to essentially say the framing the majority uses is completely misleading. It's pretty close to calling them liars. It's fairly astonishing.

The District stated that it had no objection to Kennedy returning to the stadium when he was off duty to pray at the 50-yard line, nor with Kennedy praying while on duty if it did not interfere with his job duties or suggest the District’s endorsement of religion. The District explained that its establishment concerns were motivated by the specific facts at issue, because engaging in prayer on the 50-yard line immediately after the game finished would appear to be an extension of Kennedy’s “prior, long-standing and wellknown history of leading students in prayer” on the 50-yard line after games. Id., at 81. The District therefore reaffirmed its prior directives to Kennedy.

Edit: A fun nugget is the controversy was pushed when a group of Satanists demanded time to hold a 'ceremony' after games if others were allowed to have their religious ceremony. I hope they keep to that promise.

[malchior]

It's "fun" to watch people just picking apart and illustrating how these decisions are such hack jobs now.

[LawBeefaroni]

Welp, every high school football game will now be able to have a religious purity test. Things are going great.

Oh, but don't you fucking dare take a knee during the Anthem. That's treason.

[Unagi]

Well, she's 100% right about the Thomas part.

The Roe part is IMO conceptually reasonable, but not worth the trouble most likely.

I’d love to hear these justices be shown their testimony and questioned on live tv.
Let the world see them.

[malchior]

Welp, every high school football game will now be able to have a religious purity test. Things are going great.

Oh, but don't you fucking dare take a knee during the Anthem. That's treason.

Our (Christian) ancestors died to protect our right to (Christian) observance of the solemnity of running and catching a ball. How dare these (heathen) traitors mock this time honored tradition that dates back to 2015.

[El Guapo]

So basically they're saying that the Free Exercise clause means that the government can't favor secular conduct over religious conduct for their employees?

[malchior]

So basically they're saying that the Free Exercise clause means that the government can't favor secular conduct over religious conduct for their employees?

Yup and in doing so they ignore/downplay/trample on two plus century's of jurisprudence that weighed that in tension with the establishment clause at the beginning of the same amendment. Even worse, they pretended they didn't even do it which is what the Tweet from Vladeck above is referencing. Leah Litman essentially pointed out they didn't even bother to talk about stare decisis at all (they're probably bored of it) and just took the easy ramp. Maybe writing the same lame explanations were cramping their wrists.

[stimpy]

Time to impeach!

Rep. Alexandria Ocasio-Cortez on Sunday said she believes it's an "impeachable offense" for a Supreme Court justice to lie under oath.

...

Ocasio-Cortez, speaking in an interview with NBC News' "Meet the Press," said she believes the court is facing a "crisis of legitimacy" and justices must face consequences if they lie under oath.

"If we allow Supreme Court nominees to lie under oath and secure lifetime appointments to the highest court of the land and then issue, without basis," she said, "we must see that through. There must be consequences for such a deeply destabilizing action and a hostile takeover of our democratic institutions."

"To allow that to stand is to allow it to happen," she continued. "And what makes it particularly dangerous is that it sends a blaring signal to all future nominees that they can now lie to duly elected members of the United States Senate in order to secure Supreme Court confirmations and seats on the Supreme Court."

So politicians dont like it when they've been lied too?
Most politicians have made a career of it.
Welcome to our world, chums.

[Blackhawk]

RE: Impeachment - it seems like all they'd have to do is say that they didn't lie - they changed their minds later.

[malchior]

Whether they lied under oath is fairly irrelevant to me. I don't think they did. I think they likely lied in private. It just proves they were politicians and hopeful tyrants in waiting. To me the important thing is that impeachment isn't going to work. I don't even mean actually convicting a Supreme Court judge. I mean it won't pay the political dividend worth the effort. And @AOC knows this. She is just using the "absurd" argument to get the sound bite out there which is valid as any other reason nowadays to do it.

[Octavious]

I guess at this point it's a slam dunk that they will rule against the EPA. Fun times.

[LawBeefaroni]

And @AOC knows this. She is just using the "absurd" argument to get the sound bite out there which is valid as any other reason nowadays to do it.

Clearly. But the constant stream of over-promise, under-deliver eventually leads to apathy and people checking out.

[malchior]

We don't know what the shape of the destroyer will look like in the EPA cases but it looks pretty certain. We aren't looking at interpretation of the law. We are seeing a burgeoning tyranny being born. The pattern we are seeing is that much like we learned in the Trump years; the facts don't matter. The Supreme court in several cases has essentially decided on the outcome and then cherry picked/made up the facts that they think fit the model for jurisprudence they've been spouting for years.

In saying that, I'd caveat that the pattern isn't completely proved out and some of their decisions are sound. I suspect over time it'll be fact based outcomes where there is a technical aspect. The divergence will be where there is a political/religious aspect aligned to hard-right conservative political positions. In those, the fix very well might be in.

Edit: Adam Serwer's piece in the Atlantic is good reading - entitled "The Constitution Is Whatever the Right Wing Says It Is".

In any case, this has been actually worse than many of us thought. They are showing absolutely *no restraint*. It's frankly horrifying and I don't people are taking this seriously enough.

[Octavious]

They are going to have a field day with the next session. They have to have a huge wishlist of things they want to rubber stamp though. How have they not gotten Obamacare in there yet?

[malchior]

They are going to have a field day with the next session. They have to have a huge wishlist of things they want to rubber stamp though. How have they not gotten Obamacare in there yet?

They have much bigger fish to fry - we are waiting to see if they decide to hear Moore vs. Harper.

In Moore v. Harper, the speaker of the North Carolina House of Representatives, Timothy Moore, asks the Supreme Court to consider what has come to be known as the “independent state legislature” theory — which holds that the Constitution gives state legislatures alone the power to regulate federal elections in their states, without the oversight of state courts. Moore notes that the Constitution’s elections clause states that the “Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof.” Moore argues that unlike other constitutional provisions, the clause does not refer to the state itself, but a particular institution of government.

Last November, the North Carolina legislature enacted a new map for congressional elections in response to the 2020 U.S. Census data. Respondent Rebecca Harper and 25 other North Carolina voters sued in state court to prevent the new map from taking effect, arguing that the map violated various provisions of the North Carolina constitution and represented an unlawful partisan gerrymander. In February 2022, the North Carolina Supreme Court enjoined the new map, concluding that although the state legislature “has the duty to apportion North Carolina’s congressional … districts,” the legislature’s “exercise of this power is subject to limitations imposed by other [state] constitutional provisions,” and “the state judiciary … has the responsibility to protect the state constitutional rights of the citizens.” The court further concluded that the map was an unconstitutional partisan gerrymander. On remand, the state trial court issued an order adopting a different congressional map proposed by three court-appointed experts.

[Octavious]

Eh what's the big deal? I'm sure the maps they drew were totally fair. Just like in Florida.

[El Guapo]

If they endorse the independent state legislature theory, does that mean that state election decisions can have zero oversight by any court? Such that, for example, a state could explicitly discriminate on the basis of race in its election decisions and there would be no legal remedy?

[Little Raven]

If they endorse the independent state legislature theory, does that mean that state election decisions can have zero oversight by any court?

Federal courts could still intervene.

[Blackhawk]

All of these voters who are helping the GOP take absolute power are in for a surprise. Once that power is locked down, those voters are quickly going to discover that their 'heroes' don't really care about many of the issues that got them elected. They've appealed to these peoples' fear and greed as the means to an end, not because they actually believe in their 'views', and those views that are inconvenient or unprofitable are going to be 'solved' and the (former) voters are going to find out that they're irrelevant.

For those views that the officials do believe in (many of them religious), those policies are going to be used as indiscriminate bludgeons that will hit many of the conservative voters as hard as anyone else.

[Blackhawk]

If they endorse the independent state legislature theory, does that mean that state election decisions can have zero oversight by any court?

Federal courts could still intervene.

The Federal courts are, to a meaningful degree, compromised.

[El Guapo]

If they endorse the independent state legislature theory, does that mean that state election decisions can have zero oversight by any court?

Federal courts could still intervene.

Are we sure about that? It seems conceptually weird to reach a conclusion that would put federal courts in a position to review state election decisions while cutting out state courts entirely.

[LawBeefaroni]

What I don't get is the how the dissenting judges can continue to play by the rules when the majority is clearly not doing so. It's similar to our legislators continuing to sit in the same room as their whackjob colleagues, clinging to traditions of civility and common decency until there essentially rendered powerless.

[Little Raven]

It seems conceptually weird to reach a conclusion that would put federal courts in a position to review state election decisions while cutting out state courts entirely.

Pretty sure.

Proponents of the inde­pend­ent state legis­lature theory reject this tradi­tional read­ing, insist­ing that these clauses give state legis­latures exclus­ive and near-abso­lute power to regu­late federal elec­tions. The result? When it comes to federal elec­tions, legis­lat­ors would be free to viol­ate the state consti­tu­tion and state courts could­n’t stop them.

Extreme versions of the theory would block legis­latures from deleg­at­ing their author­ity to offi­cials like governors, secret­ar­ies of state, or elec­tion commis­sion­ers, who currently play import­ant roles in admin­is­ter­ing elec­tions.

Don't get me wrong, I'm sure there's some sov-cit types out there who will insist that "The Times, Places and Manner of hold­ing Elec­tions for Senat­ors and Repres­ent­at­ives, shall be prescribed in each State by the Legis­lature thereof" means that State Legislatures MUST NOT BE INFRINGED but I very much doubt any of the lawyers showing up at the SC are going to argue with the Supremacy Clause.

[El Guapo]

What I don't get is the how the dissenting judges can continue to play by the rules when the majority is clearly not doing so. It's similar to our legislators continuing to sit in the same room as their whackjob colleagues, clinging to traditions of civility and common decency until there essentially rendered powerless.

I don't disagree, though I think the minority justices aren't in that great a position for that stuff - what is it that you want them to be doing?

I place more blame on Pelosi and Schumer (and Biden) on this stuff, because they have much broader authority to at least kick up a stink.

[Little Raven]

What I don't get is the how the dissenting judges can continue to play by the rules when the majority is clearly not doing so.

Alito is 72, Thomas is 74. What is now will not always be.

[El Guapo]

What I don't get is the how the dissenting judges can continue to play by the rules when the majority is clearly not doing so.

Alito is 72, Thomas is 74. What is now will not always be.

Yes, BUT:

(1) the Senate is structurally biased against Democrats;
(2) the norm that a justice will be confirmed if within some broad range of "qualified" is so completely eroded that it's unclear whether a Senate will confirm a nominee from the opposite party in the near future, especially if the Senate is Republican;
(3) Alito and Thomas are still young enough and healthy enough that one or both should be able to retire only when there is a Republican president. Possible that one of them holds on too long Ginsburg style or dies unexpectedly, but not likely that both will.

So it's incredibly unlikely that Democrats will be able to get a liberal SCOTUS majority at least for the next few decades. By that time it's pretty likely that the democracy crisis we're in will be over one way or another anyway.

[Unagi]

What I don't get is the how the dissenting judges can continue to play by the rules when the majority is clearly not doing so.

Alito is 72, Thomas is 74. What is now will not always be.

I don't feel like buying into that dream all that much any more.

My 12 year old daughter could well be 30 when they decide to step down. And that's me talking as if there will not be a Republican president that replaces them with v2.0

[Blackhawk]

What I don't get is the how the dissenting judges can continue to play by the rules when the majority is clearly not doing so.

Alito is 72, Thomas is 74. What is now will not always be.

They don't need that long to ensure that the choices going forwards are always theirs. If they keep going as they are, and the elections go badly (by nature or by design), it'll be largely irrelevant in three years (just long enough to expedite questions about 2024.)

[Unagi]

Maybe Little Raven is a 300-year-old vampire, and they just see this through another set of eyes.

[malchior]

What I don't get is the how the dissenting judges can continue to play by the rules when the majority is clearly not doing so.

Alito is 72, Thomas is 74. What is now will not always be.

Yes, BUT:

(1) the Senate is structurally biased against Democrats;
(2) the norm that a justice will be confirmed if within some broad range of "qualified" is so completely eroded that it's unclear whether a Senate will confirm a nominee from the opposite party in the near future, especially if the Senate is Republican;
(3) Alito and Thomas are still young enough and healthy enough that one or both should be able to retire only when there is a Republican president. Possible that one of them holds on too long Ginsburg style or dies unexpectedly, but not likely that both will.

So it's incredibly unlikely that Democrats will be able to get a liberal SCOTUS majority at least for the next few decades. By that time it's pretty likely that the democracy crisis we're in will be over one way or another anyway.

And even if they someone hit the perfect path and got a majority back they'd still have much to unwind. What we just saw was they left all the major consequential stuff to the end of session and are doing quite a bit of damage to the nation, its character, its reputation for stability, and the court's legitimacy all at once. I don't know if that is just the scale of things but it's hard to contextualize because it is so much more radical than many expected. So we are left with a huge issue. Even if a liberal majority re-appears and starts the hard work restoring even the "middle", that will cause even more damage. We have a lot to think about but I'll echo something I said awhile back I don't know a path back from this.

[Unagi]

Is this like a 'final move' type event, where they don't think they will ever be in this position again and they need to take all they can get now?
or
Is this like a 'we won' type event, where they feel they have actually already crossed the finish line, they have the numbers, the game is fixed - and they no longer need to care what the cost is because this game is no longer being played.

This seems to be a costly/ very impactful set of rulings being passed down without it being one of those 2.

[Octavious]

I would take door number 2. They very likely will have the Senate and house. They very well might have stacked the right people in the right states. And then what ever president we get will wreck house. Desantis is fucking even more terrifying than Trump. And he already won one poll. So yay!

[$iljanus]

They are going to have a field day with the next session. They have to have a huge wishlist of things they want to rubber stamp though. How have they not gotten Obamacare in there yet?

So in 2021 there was a decisive majority striking down the challenge to the ACA so most likely they'll hold off on further challenges...for now. Or there's going to be some component in the ACA dealing with birth control or gender reassignment that will draw the ire of Gilead.

The U.S. Supreme Court upheld the Affordable Care Act for the third time on Thursday, leaving in place the broad provisions of the law enacted by Congress in 201o. The vote was 7 to 2.

The opinion, written by Justice Stephen Breyer, was joined by Chief Justice John Roberts and Justices Clarence Thomas, Sonia Sotomayor, Elena Kagan, Brett Kavanaugh and Amy Coney Barrett.

Justices Samuel Alito and Neil Gorsuch dissented. They would have struck down the most popular parts of the law, including the provision barring discrimination based on preexisting medical conditions.

But the majority decision threw out the challenge to the law on the grounds that Texas and other objecting GOP-dominated states were not required to pay anything under the mandate provision and thus had no standing to bring the challenge to court.

(from an NPR article)

[malchior]

It is entirely door 2. They are settling scores they've been hinting at for years. Most people just thought they'd exercise a smidge of judicial restraint. That is why I argue it is horrifying. They aren't even really trying to conceal the extremely radical turn.

[Smoove_B]

That's what I was saying in the other thread- about how the GOP is in its death throes because I want to believe it's #1. If, instead, it's #2? It's unthinkable and it means we're now on the slide to things getting much, much worse.