Felagund
1yr ago
South Africa's Election
Since the 1994 election, the ANC (African National Congress) has been in power, and been running South Africa into the ground. Unemployment is sky-high, crime is rampant, power outages are now common (and usually scheduled), by the name of "load shedding", corruption is ubiquitous.
For the first time, in the election occurring one month from now, the ANC risks losing power. But this may not be a good thing, as more radical groups will be eager to form a coalition.
Some background on racial history may be needed.
There are four racial categories used by the government for people in South Africa:
-
White people are of European descent, of course. There are two main populations: people of British ancestry, who more frequently speak English, and Afrikaners, who are descended mostly but not entirely from a mix of Dutch, German, and French ancestry, and speak Afrikaans, a language descended from Dutch. White South Africans have a distinct group identity. They don't think of themselves as European imperialists, or something. Afrikaners in particular see the Great Trek when they traveled inland after the coming of the British as important ethnic history.
Currently, white people make up about 8% of the South African population. This is the largest population of European descent anywhere in Africa. Demographically, they are relatively older and have lower fertility rates, so expect this percentage to shrink. Per wikipedia's data, they make up about 5% of those in the 2011 census who were under 15.
Also of note is that white South Africans are disproportionately wealthy. South Africa has one of the highest levels of inequality in the world. Some portion of this is due to legacy from Apartheid, as whites were privileged economically and lived in regions closer to economic activity, by statute. And, of course, European institutions were better set up to lead to economic prosperity.
(To prevent economic competition with black workers was actually one of the driving factors behind the establishment of Apartheid.)
-
Unlike in the US, where colored is taken to be a slur of sorts, in South Africa, coloured is a distinct racial classifier. Coloured people are mixed race, descended from a variety of groups. They are the most ethnically and genetically diverse ethnic group on earth. Among the genetic influences are: the Khoekhoe pastoralists that once lived in western South Africa prior to the arrival of the Europeans, white European ancestry, ancestry from the black Bantu groups, both from eastern South Africa and from slaves imported from elsewhere in Africa, and east and south asian ancestry, especially Malaysians. This population is not homogeneous; different places may have different ratios. Coloured people primarily speak Afrikaans, and make up a large portion of the population in the Northern and Western Cape, the two westernmost provinces. They make up about 8% of the population.
-
Black refers to the portion of people who have ancestry primarily from the Bantu ethnic groups of Africa. South Africa has many such groups—of the 11 official languages, 8 are Bantu. The largest and most important Bantu populations are the Xhosa and the Zulu peoples, who together are about half of the black population. (The Zulu have existed in their current form for surprisingly little time: the Zulu empire was built in the early 1800s, when the small Zulu clan, under Shaka, violently conquered and incorporated all their neighbors, before being conquered by Britain decades later.) About 81% of South Africa is black.
-
And Asians, who make up about 2% of the population.
I'm not really entirely familiar to what extent more fine-grained ethnic distinctions matter to group identity and decision-making, as I don't live in South Africa.
Some Relevant History
Apartheid (pronounced uh-par-tate, not -tide) is infamous, of course. Running up until 1994, the Afrikaner National Party was in power, and had regulations keeping racial separation and government-backed privilege of whites in place. Among the key causes in its formation was white Afrikaners wishing not to compete for employment with black people in the early 20th century.
1994, with the end of Apartheid and the election of Nelson Mandela was a key moment. South Africa managed to transition relatively peacefully and democratically, as these things go, though not without incident.
The ANC, or African National Congress, was formed under Apartheid. It was communist (the Soviets trained them), and participated in violence. Nelson Mandela, though a peacemaker late in life, was much less of one earlier. And his wife, Winnie Mandela, was far more violent: she was known for necklacing, that is, drenching tires in gasoline, putting them around the necks of victims, and setting it on fire. But nevertheless, the transition in the 1990s was generally peaceful, with the Truth and Reconciliation Commission, and so forth. Since then, the ANC has remained in power. The ANC remains economically left-leaning. It has implement several racial programs, including Black Economic Empowerment, a form of affirmative action, which pushes black ownership and management, especially, among companies. (You may think that this would lead to whites struggling to find work, but this seems not to be the case; white unemployment is far lower than the national average, though still higher than in the US). The ANC has struggled with high levels of corruption.
Under the ANC, South Africa has struggled. Among the more visible parts of this is the electricity situation. Eskom, the state utility apparatus, has had pervasive issues with corruption. Contributing further to this is issues with crime: stealing electricity (that is, illegally hooking up lines to the power grid, to get free power) is common in the slums, increasing the load on the system, and people have been known to steal the copper from the power infrastructure in order to sell it.
Further, much of South Africa is doing poorly economically more broadly. The unemployment rate is somewhere around 32%, which is the highest in the world, slums exist, roads are often poorly maintained, and overall things aren't great. There has been some inflation of the rand (their currency), though certainly nowhere near hyper-inflation levels.
Crime rates are high in South Africa. Several South African Cities are listed as among the cities with highest murder rates in the world. Of course, the same could be said of the US cities, and it requires that you have a government capable enough of tracking and releasing those statistics even to show up, so that may not be the best measure. Nevertheless, crime rates are still high by any standard. People have gates with bars in front of their doors, and often fences around their property, at least, among the well-to-do. Many live in gated communities, with private security. There is four times as much private security as police officers.
All this said, South Africa is still among the most prosperous African countries, so there is illegal immigration.
Since 1994, South Africa has had four presidents, all of the ANC. First, and most famous, Nelson Mandela. Second, was Thabo Mbeki. Under both of these people, corruption was common, but it was under the third, and most controversial, Jacob Zuma (president 2007-2017), that it became the most extensive and well known.
While most of those in leadership in the ANC were Xhosa, Jacob Zuma is Zulu, which has made him fairly popular with much of the Zulu populace. He has been known for sexual license, for more rampant and open corruption, most notably, with the India-born Gupta brothers, and pushed for left-wing economic populism and racial grievance.
Since 2017, Cyril Ramaphosa has been in power. While some were hopeful that he would be better than Zuma, South Africa has not done especially well. Controversy has continued with Zuma, with him spending some time in jail, before being released early.
The ANC is currently polling at around 40% nationally, under 50% for the first time since 1994. This makes this election a little unstable, as some coalition will have to be formed.
Enough of history of South Africa and the ANC, now to the opposition parties.
Opposition Parties and the Election
The largest such party is the Democratic Alliance (DA). The DA has long held power in the Western Cape province, where there are fewer Black Africans, and has also managed to govern some cities in the province of Gauteng, where the largest city (Johannesburg) is, and one of South Africa's three capitals. Otherwise, though, it has been the largest opposition party.
The DA is generally considered to be much more competent. The Western Cape has been doing the least badly of all the provinces. The DA is fairly centrist, economically, and opposes affirmative action and the radical redistribution programs suggested by more extreme elements within South African politics. Unfortunately, it also has something of a reputation of being the "white people's party." Its base is certainly not entirely white, as it has been getting around 20% of the vote, of late, which is more than double the entire white population, but that is not entirely unfounded. The leadership is more white, at least, and white people are disproportionately likely to vote DA. It's also relatively popular among the Coloured community. But this isn't good for getting elected. Helen Zille, the leader of the DA from 2009 to 2019, also had the scandal of saying that colonization was a net good for South Africa, which, while maybe true, is probably something you should try to avoid saying when you're a minority party trying to hold together a coalition of like-minded people. The DA would like to have more power less centralized, and more at the provincial level, presumably so that they can get to manage more of the western cape and be less hamstrung by the national government.
The EFF (Economic freedom fighters) was formed in 2013, when Julius Malema and his friends broke off from the ANC. The EFF is very far left wing: they advocate for confiscating land and wealth from white people. If you saw online the discourse about the "Kill the boer!" chants, these were those people. Malema has said that he is not calling for white people, for now. (Yes, the "for now" was part of what he said.) They are communist in ideology, like the ANC. Malema has advocated for aid to Hamas. They wish to (quoting wikipedia here), "expropriate White-owned farmland, nationalise the mining and banking sectors, double welfare grants and the minimum wage, and end the proposed toll system for highways." (Remember, South Africa is at 30% unemployment, and economically relatively stagnant.)
It would be bad if the EFF ended up in power. Because in this upcoming election, the ANC is likely to fall belower 50%, the DA has been worrying about a "doomsday coalition" between the ANC and the EFF.
The EFF has drawn most of its voting from young black men. It received about 11% of the vote in 2019, and was feared to be polling at maybe 17% of the population for this upcoming election, up until a few months ago, but is now back down to around 10%.
A few months ago, Jacob Zuma announced the formation of the MK, (uMkhonto we Sizwe), named after the old paramilitary wing of the ANC. Zuma has wished to be eligible, which is constitutionally questionable because of a 2021 conviction. Nevertheless, he still has had courts rule in his favor, though the process is ongoing.
The EFF and MK are fairly aligned, and seem to be willing to cooperate after the election. The MK supports such things as "expropriating all land without compensation and transferring ownership to the people under state and traditional leadership custodianship," change to a more African-based legal system, replacing the constitution, making college (including through post-graduate) free and compulsory, and providing permanent jobs to everyone capable and willing.
MK is most popular among Zuma's base, so it is doing best in KwaZulu Natal, the Zulu homeland. It has been polling overall at about 10%, taking votes primarily from the ANC and EFF.
The Inkatha Freedom Party (IFP) is affiliated with the Zulu monarchy. Historically, they've done well with Zulus, though that was less the case when Zuma headed the ANC. They support power being transferred to provincial governments rather than the national government, and don't seem crazy. They are polling at only 5% or so.
ActionSA, my vague sense is, like the DA, but more black, and is polling at maybe 3% or so. They left the DA in 2020.
The VF+ (Freedom Front plus) are right leaning, and most popular with Afrikaners. They are in favor of the rights of minority groups, such as Afrikaners and Coloureds, and are against affirmative action, and in favor of free markets and small government. They are in favor of Cape Independence. I think they may have something of a reputation of right-wing racist extremists, because they're Afrikaners disproportionately, and Apartheid was a thing. This perception is funny, because they are policy-wise one of the parties least in favor of racial discrimination. I think they're currently my personal favorite, but I haven't looked excessively deep. They're only polling at 2% or so.
There are more parties.
Of course, all the parties are also gesturing at how Their One Plan Will Work to fix the electricity situation, reduce crime, lead to more jobs, etc.
The DA has organized a Multi-Party Charter to work against the ANC, EFF, and MK, including all the other parties listed above. I haven't yet worked out what exactly that's supposed to accomplish.
It is still unclear what coalition will be formed, and what policies that will result in. I could imagine the EFF or MK being in a ruling coalition could lead to many whites seeking to leave the country.
Provinces
A few provinces are also up in the air. The Western Cape, governed by the DA for the last 15 years, looks like there is a chance that it loses control of the province, or at least has to enter into coalition. This would be bad, as the Western Cape is the province doing least badly. The Referendum Party was recently formed, and is running in the Cape, in the hopes that the DA will need them to enter into coalition to run the province, in order to hold a referendum for cape independence, to get the Western Cape to secede from South Africa. The VF+ also supports cape independence. There were polls not long ago indicating that it is also relatively popular with the people of the cape, with at least a referendum agreed to be worthwhile by the majority. If any such thing happened, it would be strongly disliked by most of the country. The referendum party and VF+ support it, under the right of self-determination, and in order to stop South Africa from dragging down the Western Cape. The Western Cape is the only province that is not majority black, which means that many think cape independence is racist. Of course, even if a referendum occurs, and passes, which are both not especially likely, it's still probably unlikely South Africa just lets them go, and international politics isn't going to want to help the white-coded people by the imposition of pressure.
KwaZulu-Natal, the Zulu homeland, is also uncertain. The MK is doing well, but the ANC, DA, and IFP will all also be relevant.
Gauteng, the most populated and most urban province, containing Johannesburg, Pretoria, Soweto, etc. could also end up governed by a coalition other than the ANC. It was barely won by the ANC in 2019, so it will probably need to be some coalition after this election, but who knows the constituents.
All the others should be taken by the ANC, I imagine.
I guess I'll have to report back later (no idea how long coalitions will take to sort out) how that all turns out. It's looking like we will have a situation where the ANC, DA & co., and MK+EFF will each have enough of a block that any two of them would be able to coalition, but none on their own. I'm not sure what will be most likely to form from that.
If anything radical happens, like the Western Cape seceding, or South Africa Zimbabweing itself, that'll be sure to have an effect on the discourse around the country. (And of course, more importantly, on the people themselves.)
Apparently, a lab in china has created a virus with a 100% kill rate in humanized mice. Combined with the fact that there's a decent chance that COVID was a lab leak, this sort of thing is extremely dangerous to be doing.
I'm not sure how best to make it so that people are not incentivized to do things like this, but ceasing to fund this variety of research (it looks like the US ended one program that was pushing this sort of thing last year), and instating some sort of legal liability on those who do this, and especially if they dispose of it badly, probably seem like good decisions.
Extremely dangerous diseases are among the top few things in being both disastrous to humanity (unlike climate change) and also relatively likely (unlike a massive asteroid hitting earth). Development of them is also something that is not excessively difficult to do. This is probably the closest thing we have so far to Bostrom's black ball metaphor. People joke about Yudkowskian airstrikes on data centers; would airstrikes on labs be similarly warranted? More seriously, though, there should be far more effort put into preventing this sort of thing than there currently is.
Bostrom's concerns should probably be something more important to be aware of. The ideal is just to not develop technology in specific fields to the point that killing millions is a cheap and easy thing to do. Of course, the tradeoff is totalitarianism, a terror of its own.
EDIT: Some of the comments have argued, relatively convincingly, that this particular news story was overblown and misleading.
Felagund
11mo ago
I finally got around to the last case (well, except for the early ones before I started doing these, which I have no intention of returning to):
Moody v. Netchoice and Netchoice v. Paxton
9-0, as to judgment; 6 is the most any one opinion gathers, with Kagan writing, joined by Roberts, Sotomayor, Kavanaugh, and Barrett, and in part, Jackson.
Alito writes for the other three. Thomas, Barrett, and Jackson all write additional opinions.
The case concerns two laws passed in 2021 regulating internet entities, one from Florida, and one from Texas. The laws restricted content moderation, and required explaining the reasoning behind content moderation restricting users. Netchoice is suing that these violate the first amendment. Netchoice is a trade association containing a whole host of large social media companies—Google, Etsy, Twitter X, and a whole host more—that exists, it seems, largely to lobby or combat laws like the two passed.
In both cases, Netchoice sought preliminary injunctions, and in both cases they were granted by the district court. The Eleventh Circuit held that the platforms' decisions were constitutionally protected speech, and accordingly found that the moderation and disclosure requirements were unconstitutional (the latter because it is too burdensome), with the sole exception of the requirement in Florida's laws that the platform disclose the content moderation policy in general (as opposed to in specific cases). The Fifth Circuit held that NetChoice did not try to show it unconstitutional in all applications, held that the restrictions on moderation were not regulating the Platforms' speech, and upheld the disclosure requirements, both general and particular, due to Zauderer having ruled that it was permissible to compel factual information.
The Supreme Court here unanimously agrees that the cases need to be remanded, as courts did not adequately consider that these were facial challenges—that is, that they must consider the law in general, rather than as applied to the plaintiffs. The laws are broad, and they were only addressed narrowly.
I'll start with the smaller opinions this time.
Barrett concurs. She briefly notes at the outset that she agrees with the court that the Eleventh Circuit (which struck down the Florida law) correctly stated 1st amendment precedent, whereas the Fifth circuit (which upheld the Texas law) did not. The remainder of her concurrences emphasizes that this indicates the difficulties of bringing a facial rather than an as-applied challenge. She notes the various difficulties in evaluating these, even were it only as-applied: the first amendment only protects expressive activity. Are decisions made by AI expressive? Further, what if the corporation is located overseas, and so not entitled to First Amendment rights? Considerations like these would more fittingly be applied in specific cases, instead of attempting to evaluate it all in a single facial challenge. So she would prefer they bring it as-applied.
Jackson concurs in part. She thinks that it is generally clear that some things a social media company may do are protected by the first amendment, and others are not, but it is hard to say more here. She agrees with Barrett that the Eleventh Circuit "at least fairly stated" the First Amendment precedent, whereas the Fifth Circuit did not. But, like the whole court, she agrees that they need to reevaluate it in light of it being a facial challenge. Jackson states that the question, in evaluation of this, is not whether corporations as a class, or a particular corporation, is acting constitutionally, nor even whether, e.g. content moderation fits precedent, but it depends on the way that the activities actually function regarding whether they constitute expression. Jackson would decline to look at the ruling on the merits as-applied to the companies, and hence she only joins three parts of the majority opinion: I (the history of the cases), II (the analysis of it being facial, and so requiring remand), and III-A (the account of the first amendment precedent). It seems she does not join Kagan's application of that precedent to these cases.
Thomas concurs in the judgment. He disagrees with the court's decision to give opinions on the applications of those statutes, as this involves some of the same sorts of analysis that they complained about—looking at specific cases, instead of the broad range. He agrees with Alito's analysis. Thomas first notes two additional considerations: the Courts depend on Zauderer, which stated that "laws requiring the disclosure of factual information in commercial advertising may satisfy the First Amendment if the disclosures are reasonably related to the Government's interest in preventing consumer deception." In classic Thomas fashion, he thinks that should be reconsidered, citing an opinion from himself fourteen years prior. Secondly, he notes that he thinks the lower courts should continue to be guided by the common carrier doctrine, which have certain requirements, especially, service of all comers, and that there is historical precedent for regulating transportation and communications networks like traditional common carriers. (Again, citing his past opinions.) The lower courts addressed this in their analysis previously; they should continue to do so, though that cannot really be feasibly be done under a facial analysis.
With that prelude aside, Thomas turns to the main portion of his concurrence, where he argues that facial challenges violate the command of article III. Article III gives courts the power only over "cases" and "controversies." In such particular cases and controversies, it is the place of the courts to say what the law is, but only in those cases. This is necessary to confine the courts to a judicial role. Facial challenges conflict with this because they ask whether statutes constitutionally conflict in cases not before the court. Facial challenges require that no set of circumstances exist under which it would be valid, or in the case of the First amendment, the looser standard that it has prohibits too high of a ratio of protected:plainly unprotected speech. Facial challenges thus ask courts to issue decisions that are unnecessary to decide some particular case or controversy. Plaintiffs are required to show that they personally have suffered an actual or threatened injury, and must be given a remedy that is limited to the injury. Accordingly, the case is done once they have decided whether it is legitimate as-applied. Deciding whether it would be legitimate as applied to other plaintiffs is not necessary, and should be considered as no more than an advisory opinion, which should not be issued. Facial challenges allow challenging applications of statutes that have not injured him, which is ordinarily disallowed. They also allow enjoining of applications of statutes which have nothing to do with his injury, which is not how redressability is supposed to work, and like a universal injunction, which is itself problematic (citing himself and Gorsuch). Facial challenges further intrude upon powers reserved to the Legislative, the Executive, and the States. They allow for the review of constitutionality of applications of a statute before even it has been enforced, giving courts "a general veto power" upon the legislation of Congress, but the Judiciary has no constitutional role in lawmaking. As-applied challenges minimize intrusion. This leaves the Executive branch free to enforce it in other applications. Facial challenges, on the other hand are maximalist, leaving the other branches with no opportunity to correct things, harming the democratic nature of the government. Moreover, facial challenges can prevent the application of state laws in its particular cases, and usurp power from state courts, contrary to the 10th amendment.
Facial challenges also create practical problems. They harm the adversarial system, by allowing plaintiffs to present a challenge without direct knowledge of how the case might apply to others, and so often depend on speculation.
As applied to these cases, the state officials had no opportunity to tailor the enforcement of the laws, nor state legislatures to amend the statutes prior to their enjoinment, nor state courts to interpret the law. Rather federal courts, with little factual record, did. Thomas notes that some blame here is because of associational standing (e.g. NetChoice, instead of the constituent entities) mucking things up—he opposed associational standing in his concurrence over mifeprestone earlier this year—but the facial nature also plays a role in that. The task before them is impossibly complex.
They are also suspect in their origins, being a result of vagueness and overbreadth. At the time of the founding, the courts correctly understood themselves to only decide particular cases or controversies. The founders four times rejected creating a council of revision, which would evaluate and reject statutes, untied from a case. The narrow understanding of what the court could do was generally adhered to for over a century. The first change to this was the development of vagueness—courts began in 1914 to strike down statutes as unconstitutionally indefinite. In 1940, in the First Amendment context, they struck down a statute as "invalid on its face," as it was a "sweeping proscription of freedom of discussion." The court has never justified this overbreadth doctrine in text and history, "just policy considerations and value judgments." This eventually spread elsewhere, without textual or historical justification. Thomas concludes that the court should put an end to facial challenges.
Enough of the minor opinions, now to the two major ones.
Kagan writes for the majority. After introducing and giving the history of the cases (recall: 5th circuit upheld the law, the 11th circuit struck it down), she addresses the facial nature of the case. The court has made facial cases hard to win, ordinarily requiring showing that they are invalid in every application. It is still difficult even in First Amendment cases, like the present one, where the challenger must show that "a substantial number of the law's applications are unconstitutional, judged in relation to the statute's plainly legitimate sweep." But both parties thus far have only been considering them in more narrow applications (like Facebook's news feed), instead of the full range of applications (Among others, is direct messaging covered? Gmail filters? Etsy reviews?). And then it must be considered whether those applications violate the First Amendment: in the case of the content-moderation provisions, whether it intrudes on protected editorial discretion. Regarding individualized-explanation provisions, whether the disclosures unduly burden expression. These issues have not been considered, so they vacate and remand.
Then: "It is necessary to say more about how the First Amendment relates to the laws' content-moderation provisions, to ensure that the facial analysis proceeds on the right path in the courts below," and this is especially needed for the Fifth Circuit, as otherwise, it would just decide the same way, as it wrongly held that they were not speech at all, and wrongly treated Texas' interest as valid.
In essence, Texas' law requires carrying or promotion of speech, when the platforms would rather do the opposite. The platforms argue that this requires changing their expression, and the Court has held in the past that expression includes curation of speech by others. The precedents: In Tornillo, the Court held a law requiring newspapers give candidates the right to reply to criticism violated the First Amendment, in forcing them to print what they would otherwise not. In Pacific Gas & Elec. Co., a utility company distributed views on energy policy in its billing envelopes, the state required including inclusion of material from a different perspective, and the Court sided with the company, as it was not required to carry speech it disagreed with. In Turner I, they held that rules requiring cable operators to allocate channels to local broadcast stations involved the First Amendment. (Even though they eventually decided it was worth restricting anyway in Turner II.) In Hurley, they decided that a parade was free to decide who to admit. On the other hand, they allowed compelled access in two cases: in Pruneyard, they permitted a law compelling a mall to allow people to distribute pamphlets. And in FAIR, they permitted which compelled law schools to allow the military to recruit on campus. In both of these, it was understood that these did not affect expression of the party.
From that can be drawn three principles: The first amendment protects those who compile speech when they wish to exclude some. Secondly, this includes when they exclude just a few items. Third, the government cannot merely assert an interest in balancing the marketplace of ideas.
Things like Facebook's News Feed involve removing or prioritizing content. This is like the cases before, and so is protected. Texas's law thus is problematic. This does not change by the fact that they allow most speech through. Nor does the fact that users can easily tell that it is the users speaking, not the platform, change anything.
Texas' stated interest does not work—promoting ideological balance among private actors is not a legitimate government interest, as it is inherently censorious.
The remaining major opinion is that of Alito:
Alito opens, in the very first paragraph of his introduction, by stating that everything except the facial unconstitutionality of the case is nonbinding dicta. That is, most of Kagan's opinion is extraneous to the matter decided then, can be dismissed, and is of no precedential value. He agrees that it needs further examination as to whether it is facially unconstitutional. But they should not have gone further.
Alito proceeds to a lengthier discussion of the state laws and history of the two cases before they came to the Supreme Court. Then he turns to the facial nature of the challenge: these are strongly disfavored, and conflict with several principles—they clash with the general principle of not reaching beyond what is needed in court decisions, are antidemocratic, and "strain the limits" of the constitutional authority to decide "cases" and "controversies." Accordingly, the requirements are demanding—generally speaking, it fails wherever there is any "plainly legitimate sweep" to the statute. Netchoice asks that this standard not be applied. This is wrong, as the states have asked for the rules of a facial challenge to be applied, and even were it not the case, they would still be necessary for the courts to follow. Netchoice chose to make a facial challenge; now it must deal with the consequences of that choice.
Alito then turns to whether NetChoice manage to show that it is facially constitutional. He begins by reviewing. The First Amendment protects freedom of speech, which usually involves government efforts to forbid, restrict, or compel expression. But some cases have included presenting an edited compilation for the purpose of expressing a message. But not every compilation is expressive. Accordingly, the First Amendment only protects expressive compilations. To show that a compilation is expressive, they must first show that they exercise editorial discretion, and are not, for example, "dumb pipes" that return whatever is put in. This may vary within the same entity, even—newspapers often will exercise far less discretion in advertisements, which may make a meaningful first amendment difference, or a parade might ordinarily only select groups, and not individuals. (Contra the majority, it can matter how much they include vs. exclude, depending on their methodology.)
Additionally, the compilation must be expressing some (often abstract) point. Chronological organization, for example, isn't really expression. It was for this reason that in PruneYard they were willing to compel a mall to host third-party speech.
Third, they must show that their speech is affected by the speech it would be compelled to accommodate. In PruneYard and FAIR they held that the government could compel speech, because speech in those cases was not expressive.
After it has been shown that the first amendment applies, it then has to be shown that the regulation "violates the applicable level of First Amendment scrutiny"—as in Turner, where they decided that it did involve the first amendment, but nevertheless, the government prevailed. Here, they assert an interest in fostering a free and open marketplace of ideas, as well as preventing discrimination against people who live in Texas, which Alito considers compelling interests.
Netchoice failed to meet this burden. First, it did not establish which entities were affected, which make it difficult to know whether a facial challenge should succeed (might it cover websites like WhatsApp that act more like passive receptacles, without curation, and so be legal at least in those cases?). Second, it did not say what kind of content appears, which might be relevant for the first amendment (e.g. is it political? That might matter). Third, it does not show how they moderate. Reddit outsources moderation, which makes it arguably not reddit's speech.
The majority spends much of its opinion specifically talking about how this would apply to the Facebook newsfeed or youtube homepage. Alito points out that this might not even be needed—the fifth circuit can decide on other grounds. He disagrees with their characterization of it as expressive, as they have not revealed how their algorithms were created or work. And they do not consider whether they should be common carriers. And it is not so obvious that what these platforms do in their curation is the same as what editors do—massive scale, post hoc removal, AI algorithms. It also remains to be considered whether "network effects" make any difference. (I'm a little surprised they didn't mention Turner II here, which allowed the government to mandate cable networks carry local stations, despite recognizing that there were first amendment concerns, as otherwise they'd be shut out of the market). He thinks all of these should be resolved in a future as-applied challenge.
Turning to the disclosure questions (saying why messages were censored), they must, under Zauderer, not unduly burden speech. That's hard to know in a facial challenge, and even in the case of YouTube, it doesn't seem like that huge of a burden. This is especially the case for companies that already have to do all that anyway under an EU law.
Let's analyze this in a different direction, by issue.
Should this be remanded due to the facial nature of the challenge? 9-0.
Was the 5th circuit's analysis of editorial discretion problematic? Gorsuch, Alito, and Thomas do not explicitly say; the other 6 are clear that it erred.
For that reason, should the court give further guidance? 5-4 (Alito, Gorsuch, Thomas, Jackson in the minority)
Is the risk of misattribution sometimes the decisive factor as to whether it is protected speech? 5-3, against Gorsuch, Thomas, Alito. (Jackson gives no indication)
Is it ever relevant whether a compiler includes most items and excludes only a few? 6-3, against Gorsuch, Thomas, Alito.
Is an interest in improving or balancing the marketplace of ideas legitimate to compel speech? 6-3, against Gorsuch, Thomas, and Alito.
Does Netchoice's failure to establish which entities are covered mean it fails to show the laws are facially invalid? 9-0.
Is it meaningful that Netchoice has not shown how (delegation of moderation to third parties, like reddit, or the use of algorithms instead of human judgment) it moderates content? At least 5 agree: Alito's opinion, Jackson's (she specifically highlights it), and Barrett's.
Thomas, Gorsuch, and Alito think that the court should at least have addressed the common carrier argument. They also are concerned that there may be further concerns and important differences between editing a newspaper vs. moderating a social media site (size, network effects, algorithmic vs human moderation).
Some additional thoughts:
People, especially on the left, think of Thomas and the court as corrupt. Aside from the extent to which that is bolstered by politically motivated slander, I don't think they realize that Thomas wants to constrain judicial power, seeing its current state as beyond constitutional bounds. Compare to the complaints of Jackson in Trump v. United States, released on the same day, that the court was expanding its own power. And it isn't unique to this case; he's also expressed doubts about certain conventional forms of standing, and a few other sorts of things. I'd imagine Gorsuch concurs with Thomas on a lot of this, though not on everything he said (e.g. I don't think Gorsuch is much of a fan of prosecutors tailoring laws being important, due to fair notice concerns—it's not good, and unfair to the citizenry, to have a bunch of broad laws erratically enforced).
All of these opinions depended heavily on precedent. I have no idea what originalist methodology would say here.
I also don't think I got a sufficiently clear view from either party as to what constitutes expression and what does not. Nor do they really deal with common-carrier questions, which are very relevant, I think.
There have been revelations (though some already speculated before the release of those) that Alito originally had the majority in this case, with Barrett and Jackson siding with him, but they eventually left.
Practically speaking, I'm not sure what's the best policy-wise. With the acquisition of Twitter, it doesn't feel like conservatives are at quite as much of an ideological disadvantage. It seems risky to allow government intervention in speech. I also don't know about jurisdictional questions—does it make sense for states to be able to regulate a shared platform? What if they do so in different directions? Might those who believe in the dormant commerce clause (that is, states being unable to regulate interstate commerce) think it applies here?
Thoughts on Trump v. United States:
There were five opinions. The Conservatives joined Roberts' opinion, except for Barrett regarding one section. He set out the following:
Presidents have absolute immunity for core constitutional powers.
For official acts more generally, he at least has presumptive immunity, but maybe absolute immunity.
They have no immunity for unofficial acts.
This judgment was based on large part on structural considerations of the constitution. For one, if the Constitution says that the President shall have some power, like the veto or the pardon, Congress cannot, by regulation, limit that or take it away. That would counter the separation of powers and intent of the Constitution. On the other hand, some things have authority from both, so maybe Congress could regulate those.
Additionally, this was based in large part on extensions of precedent from several prior cases, especially Nixon v. Fitzgerald. There, they ruled that presidents could not have civil suits leveled against them for official acts in Congress. While there is a greater interest, there is also a greater danger to the president, as jail is more serious than a financial burden.
The concern is that not having any immunity would allow frivolous criminal cases to proceed, which would seriously limit the bold action that the founders would have wanted a president to take. In such things, the dangers of intrusion on the executive branch must be considered: subpoenas were ruled to be fine in Burr. Executive privilege has long been held to exist. In all such cases, the risk of intrusion is weighed against the interest of the people, and so in this case, because criminal proceedings are a serious matter, they are allowing them, but they are permissible, but cannot pose any danger of intrusion upon the authority of the Executive branch.
Roberts applies this to the particular cases. The conversations with the DOJ officials, including threatening to remove the Attorney General are held to be absolutely immune, as they have past held that deciding who to prosecute, as well as removing officers, are within the exclusive authority of the President. Conversations with Pence are official, but the government may attempt to rebut that it will not impose dangers, as Pence arguably was carrying out a ceremonial role, and as a member not of the executive. Conversations with state officials to form alternate slates of legislatures, they do not rule on whether they are official or not. Public speeches and tweets, they do not rule whether they are official or not, as it is tricky to discern whether he is acting in the capacity of a candidate or of a president. All these they remand to lower courts to work out.
They also rule that official acts may not be used as evidence in courts, especially since it could be prejudicial. Barrett did not join this.
Roberts then rebuts the various arguments of the dissents, points out that they are giving Trump less than they asked, and are still leaving room for most of the charges, and argues that this is not the "chilling doom" that they are making it out to be. And that it is needed to prevent an executive cannibalized by itself, with each administration prosecuting the last, and so in fear of acting itself.
Barrett joins in large part, except the note on evidence. She would prefer to frame it differently: "immunity" is shorthand for saying that the President may challenge whether criminal statutes are constitutional as applied to him, and he can do that in interlocutory review, before the trial. All agree on the first point in some form, at least, even the dissent. And interlocutory review is "necessary to safeguard important constitutional interests." She would prefer to resolve some things the court left open: most importantly, that the president is not absolutely immune from all official conduct, as Congress has concurrent authority over many government functions, and so they should be able to regulate those, including criminally. Barrett would assess whether charges on official acts are valid in two steps: first, by looking at whether the statute reaches his conduct (e.g. maybe the murder statute prohibiting "unlawful" killings doesn't apply), and second by looking whether it poses danger of intrusion on the authority and functions of the executive branch. For example, the electors case would not intrude. This is the usual case in criminal law. The difference is interlocutory review, and this is necessary because even the mere existence of the trial itself threatens constitutional interests, and so they must be addressed at the outset. She disagrees on whether immune official acts can be evidence, though—it may be necessary in some scenarios, and they can follow the ordinary route of instructing juries only to consider them in specific capacities.
Thomas writes, in something of a sideshow, on the whole office of "Special Counsel." The appointments clause requires the President to appoint some listed offices, and other offices to be under Congress' jurisdiction, but by require it to be done by law. The President may not merely produce offices; some of the motivation for this was due to the history under England, where the King could create new offices and fill them. Congress often explicitly created offices. But there does not seem to be any statute authorizing the appointment of the Special Counsel. He doesn't think the ones cited work. Further, if he is an inferior officer, such a statute would require that the statute give the Attorney General the authority to fill it.
Sotomayor dissents, joined by the other liberals. She sees this as putting the president above the law. Sotomayor thinks that the majority expanded the core immunity beyond any reasonable bounds, baselessly created immunity for official acts, and nonsensically ruled that immune acts cannot be used as evidence.
Starting with text, the Constitution makes no provision for immunity, whereas it did in the Speech and Debate clause for Congress, and some states did for their governors. Additionally, the impeachment clause contemplates prosecution. Turning to history, Hamilton, in Federalist 69, thought the president could be prosecuted, (he says that he was no more secure than the governors of certain states). Pinckney said there was no privilege, and Madison proposed the convention consider privileges of the executive. It was generally agreed that Presidents could be prosecuted. "It seems history matters to this Court only when it is convenient" (citing Bruen and Dobbs). Third, Presidents past understood themselves to be liable, looking especially at Watergate: Ford pardoned Nixon.
Sotomayor thinks the majority's opinion is too broad, when it says no dangers of intrusion, as practically everything has some danger of intrusion. And so their not deciding whether it is absolute hardly matters. Further, they read official acts too broadly. And their basis for it is solely based on Nixon v. Fitzgerald. Fitzgerald considered weight of interest vs. dangers of intrusion. A criminal prosecution is an interest on behalf of the public, and is much greater than the private interest from a civil suit. And she thinks that criminal suits are going to be less serious with regard to the executive: in civil suits he's an easy target from anyone, where as there can only be one criminal suit per act, and further, there are all the ordinary protections in the process of bringing to trial and the trial itself. She does not think bare allegations of malice would suffice. Further, every executive to date has long thought they were vulnerable to such, and it hasn't stopped them from acting boldly, so the Court shouldn't worry as much about that. Sotomayor also rejects that it is a narrower immunity, as Trump's case thought that those impeached could be convicted on those acts, whereas here they are immune.
Sotomayor grants that core immunity would make sense, but that it should not have been at issue here, should not have been addressed, and was made too broad. She does not think he should be immune regarding conversations with the DOJ. She also thinks that the evidence is rule is unprecedented. It is strange to bar official conduct: e.g. barring using speeches to establish mens rea. Nor is the majority's justification any good. And she thinks this case is also bad in its application to the case: they did not conclusively say anything was private, or anything that anything was prosecutable. The follows the passage you may have seen online, where she says that this sets up a law-free zone, and that he would be immune for coups or assassinating rivals with Seal Team 6, or bribes for pardons. And finishes with, instead of "respectfully," "with fear for our democracy."
Jackson agrees with "every word of [Sotomayor's] powerful dissent" and writes to go through "the theoretical nuts and bolts" of how this changes how presidents are accountable. No one should be above the law, and immunity is an exemption from the law. She calls her preferred model and "individual accountability" model: the legislature makes crimes, when someone violates them, a grand jury is convinced there's cause to indict, they gather evidence, go through a trial, with a jury, where he may make various defensive arguments concerning that trial, even some before trial (including that the law would be unconstitutional as applied to him, or that his conduct, if proved, still would not violate the law). He may also present defenses that excuse otherwise punishable offenses, including that which Government officials sometimes invoke when carrying out duties.
She thinks the majority's opinion is worse. For every allegation, they must go through and parse whether it violates core constitutional powers, is an official act, and if so, whether the immunity is there rebutted. And this must be run through even in extreme cases, such as assassinations or coups. Under her preferred paradigm, there are no exemptions from criminal law, but they can still use legal arguments of its inapplicability, and defenses. The majority's opinion can give immunity "even for unquestionably and intentionally egregious criminal behavior." And she reminds that under her preferred model, the president could still present affirmative defenses that it was justified, whereas the majority's allows crimes even when no one thinks there is any excuse.
This opinion increases the power in the judiciary and executive, and lessens the power of Congress. The court, in this immunity decision, has taken from Congress the ability to bind the President to its mandates, and so increased the power of the Executive. The president may take care that the laws be faithfully executed, but is under no obligation to follow them himself. The court also gives itself power, as it does not give a clear enough definition of the extent of any of the things: what is core vs. not, what is official vs. unofficial. (She thinks, unlike Barrett, it seems, that it is challenging to apply the reasoning to the slates of electors.) And so the Court has arrogated to itself the ability to draw lines regulating the President, rather than Congress.
This decision also reduces deterrence, by the threat of criminal liability being largely gone. Presidents are far less accountable. She sees the majority as mainly motivated by what would be good and bad, not law. But she does not think that they consider adequately the need for restraint upon the executive.
This plants the seeds of absolute power. She cannot stand their discarding the rule of law. It is now rule of judges, instead. She thinks that they do not adequately appreciate the risks, and so dissents.
You can tell that she has a background in criminal law.
Thoughts on this, then:
This case is striking in how it differs from other constitutional cases the court has taken: it hardly considers founding-era context, turning rather to structural concerns and precedent. And much of the motivation for individual concerns is closer to "this seems like it would be needed to get the results the founders wanted" rather than "the Constitution says this." On the other hand, Sotomayor's argument is significantly more originalist than the majority, which is an unusual turn.
I found this piece, by Baude, to be pretty good. This ruling, like the Trump v. Anderson ruling, were not adequately justified. Trump v. Anderson was far worse, failing to consider that states have discretion to choose their own bodies of electors essentially however they wish, per the Constitution (Here's a length complaint about it, though nowhere near as lengthy as his arguments leading up to that point.). But this too was different from the principled way that they more often act, turning in large part to precedent. The part that was most egregious, in my judgment, was the evidentiary rule (pages 30-32)—they hardly bother to justify that, I think. Unless, is this previous immunity caselaw? I guess if there are any lawyers who know about that, that would be helpful if you could weigh in.
While I agree overall that having some level of immunity is sensible, I would have appreciated it if they had, for example, tried to show what exactly could be done to founding-era Governors of states, if there exists any history to that effect. But the Burr cases were practically the only founding-era history they cited, and they were not relied on very much.
Their arguments for core constitutional powers being absolutely immune, and for unofficial acts being not immune, seem rather compelling. What is not clear is the central holding, about presumptive immunity for official acts. It must be noted that they left a lot of ground here open: they left it open that it could be absolute immunity (I imagine there was at least one justice who thought it should be?), and left a lot of room as to what exactly is official, and made no attempt to assert what would involve infringing on executive powers. They make clear that this deals with things that are not under Congress' control, but I do not think they argue for why this is needed aside from that this is necessary to bring about a bold executive. Actually, I'm now wondering, after seeing the word "chilled" on page 13, how this compares to first amendment cases—the reasoning being that such things in effect strip of constitutional powers. I don't know that I'm all that happy with that, and it feels a little like judicial legislation ("balancing tests"), but alright, fair enough, I suppose.
I would also be interested in looking at whether, for example, at founding era times, it would make sense for Presidents to be able to be bribed for pardons or vetoes in the founding era, and that be pursued by avenues other than impeachment. Can presidents, after being impeached, be convicted of treason or bribery in their official acts, for example?
Now, finally, I'll turn to the differences between the Roberts' opinion and Sotomayor's dissent, and try to examine which I find more compelling. I'll organize this around claims from Sotomayor's dissent.
Text: Sotomayor: There is no immunity in the text. (Page 5)
Roberts: A specific textual basis is not needed (citing Fitzgerald). (Page 37)
Sotomayor: I didn't say that it was, but there are three reasons it's relevant: First, the framers knew how to provide immunity, looking at the speech or debate clause. Second, state constitutions applied some immunities, but Congress does not. Third, the impeachment clause allows for liability for former presidents. (Page 5-6)
Roberts: Regarding the first, it's implicit; there's no separation of powers clause. Roberts does not address the second argument. For the third, Roberts notes that it does not say whether the clause thinks that official conduct may be prosecuted. (page 38)
My thoughts: I think Roberts largely addresses the arguments successfully, but he could have looked a lot further regarding state constitutions. Both sides are reasonable.
History: Sotomayor: Hamilton thought that Presidents would be "liable to prosecution and punishment in the ordinary course of law," unlike the king of Great Britain. He would stand "upon no better ground than a governor of New York, and upon worse ground than the governors of Maryland and Delaware."
Roberts: These do not specify whether they are talking about official conduct, or private crimes.
Sotomayor: Madison proposed the Constitution consider privileges to be allowed to the Executive, but there is no record of it. Pinckney, a delegate, said that no privilege was intended for the executive.
Roberts: This is the best of your historical arguments, but they only represent the claim that no mentioned immunity exists, don't mention that whether it's official, and Pinckney isn't reliable on separation of powers, anyway. (page 39)
Sotomayor: James Wilson and Justice Story recognized that federal officials may be tried. (pages 7-8)
Roberts: This doesn't specify whether it's official, and further, they don't even say whether the President is also in mind here. (page 38)
Roberts:Further, Nixon v. Fitzgerald recognized that all this evidence is fragmentary.
Sotomayor: Nixon v. Fitzgerald was only talking about history for civil cases, and in any case, it still looked to them and showed that it was best, where as you merely try to show it permissible. It seems this court only cares about history when it suits them.
My thoughts: Roberts generally successfully rebuts on most of this, but the Hamilton quote needs to be examined, because of the reference to state constitutions. Let's take a look. He references New York, Maryland, and Delaware. But Virginia was afterwards substituted for Maryland.
New York: The representatives can impeach, and the party convicted shall nevertheless by liable and subject to indictment, etc.
Delaware: The president is impeachable when out of office, and within 18 months after. If guilty, then subject to such pains and penalties as the laws direct.
Virginia: The Governour. when out of office, and others offending, whether by maladministration, corruption, or other means, is impeachable. And subject to laws of the land, including under pain and penalty of the law.
So Hamilton seems to be talking mainly about when they may be impeached: New York doesn't specify, but Delaware and Virginia are later.
But I think it might need to be noted that Virginia seems to be including official conduct as under judgment. Sotomayor's case would have been stronger if she's looked into that.
Aside from my own Virginia question, and Sotomayor's point that the court seems selective in when it wants to use history, Roberts seems to come out on top.
Established Understanding:
Roberts: That's only an understanding, not any evidence of it showing up in actual practice, because no one's been prosecuted. (page 39)
Sotomayor: "Settled understandings of the Constitution are of little use to the majority in this case, and so it ignores them." (page 10)
My thoughts: A consensus, it seems.
Overall result of the judgment:
Sotomayor: No dangers of intrusion? Everything seems to have dangers of intrusion. That's practically absolute. (page 11)
Barrett: The setting up slates of electors, even if official (which, by the way, it's not) would not pose intrusion. (pages 3-4)
Roberts: The vice president things would maybe not pose any dangers of intrusion, we're sending it back down to lower courts to decide. (pages 21-24)
Sotomayor: But that shouldn't be the standard. What about needs to promote objectives within the constitutional authority of Congress, or of the Judicial branch to do justice in criminal prosecutions? (page 11)
Silence, so far as I can see.
Sotomayor: The majority reads official too broadly, including whatever is not palpably beyond his authority. And motive may not be considered, which would mean that even action for corrupt purposes would then remain immune. (page 12)
Barrett: The elector stuff is clearly unofficial. (page 3)
Roberts: The elector stuff might be unofficial, and maybe the speech stuff, we're sending it back down to decide. (pages 25-30). Anyway, motive shouldn't be considered, as then merely alleging improper purpose would open everything up to liability, which would be crippling, as Fitzgerald says. (page 18)
Sotomayor: This makes the president above the law. (page 12)
Roberts: No, this just preserves executive authority. He can still certainly be subject to prosecution in his unofficial capacity (pages 39-40.)
Sotomayor: Of course he can, that's not in dispute. (Page 11.)
My thoughts: Sotomayor's concerns are valid, but I don't think they'd be applied that way in practice. Barrett's made it quite clear that she reads this narrowly, and I imagine that that would apply to at least one of the others, which would put a five-member majority including the liberals, if it ever makes it back to the Supreme Court in the near future.
How Fitzgerald applies:
Sotomayor: Criminal cases can't just be brought by anyone, so there'll be fewer of them. (page 15)
Roberts: Yes, but it's still a bigger threat, because the punishment is a far stronger deterrent. (page 13)
Sotomayor: There are procedural safeguards, before a criminal case is brought. "Bare allegations of malice" would not suffice to bring about a trial. (page 15-16)
Roberts: These are important. Nevertheless, regarding the claim that grand juries, etc. will prevent the bringing of baseless prosecutions, "we do not ordinarily decline to decide significant constitutional questions based on the Government's promises of good faith." (page 37)
Sotomayor: The President can argue that it's unconstitutional as applied to him at trial, as a protection. (page 16)
Barrett: Glad to note that you agree that there are some unconstitutional prosecutions. (page 1)
Roberts: These fail to address that there are some things that can't apply in the first place, so all this has to be addressed at the outset. And a trial is itself a negative. (page 36)
Sotomayor: Presidents have long considered themselves open to such a threat, but that didn't hurt them. And some caution is necessary.
Roberts gave no response that I could see.
Sotomayor: The majority seems concerned not by truly criminal acts, nor are they concerned about the President thinking for a second, but rather it must be baseless accusations. But this would be doomed to fail. They should trust the President's to be bold despite that. (page 18)
Roberts: Section 371 covers conspiracy to impair the lawful function of any department of government. Practically every president is criticized for not enforcing enough in some zone or another (e.g. drugs, guns, immigration, environment). There you go, open to prosecution. It'd be easy to fall into a norm of always prosecuting your predecessor. (page 40)
Sotomayor: On the other hand, the public interest in prosecuting presidents is greater than the private interest in a civil suit. (Page 19)
Roberts: Yes. (Page 13)
Sotomayor: This is especially true in cases where there is civil liability, as that's the only avenue. Further, he represents the people, so all the people have an interest. Additionally, the Executive Branch has an interest in bringing about prosecutions of criminal law, so you're preventing that.
Roberts: says nothing.
Roberts: The immunity Trump requested is larger than that recognized: he wanted immunity from anything that he was not impeached over (32).
Sotomayor: No, Trump only asked for immunity for the unimpeached. You want immunity regardless. (page 22)
My thoughts: Overall, I think Roberts wins on the criminal liability being worse, but I'm not sure. The second point, that the interest is greater, he concedes, and that is one reason the immunity might not be absolute. The third, as to which is stronger, I mean, both have a case?
Conduct within his exclusive sphere:
Sotomayor: This has some sense, if it were relevant. But that doesn't involve the actions in question. But the majority reads it too broadly, including "take care that the laws be faithfully executed," which includes all sorts of conduct. (23-24)
Barrett: I don't read the majority opinion that way. (page 2)
Sotomayor: The majority holds him absolutely immune from prosecution involving conversations with the justice department. That expands the category beyond recognition. (page 24)
Barrett: It being part of the core executive power fits with our separation of powers precedent. (page 2)
Roberts: The Executive Branch has exclusive authority and absolute discretion involving these matters, per precedent (page 20).
Sotomayor: You can't pretend that the Government agrees with you on that; its vision of it was smaller.
My thoughts: I think Barrett reads what's going on here better than Sotomayor.
Evidence:
Sotomayor: This deprives prosecutions of any teeth. And it's strange to say that a speech couldn't be used as evidence of a mens rea. (page 26)
Barrett: Yeah, I agree this makes it too hard (page 6).
Sotomayor: This has no basis in law. The first amendment allows use of it as evidentiary, but not criminal. (page 26)
Roberts: This would eviscerate the immunity, inviting the jury to consider acts for which the president is immune. (page 31)
Sotomayor: But you could just instruct the jury? (page 26, Barrett agrees, page 6)
Roberts: But people have strong feelings, this would still bias things. (page 31)
Barrett: But it's already the case that evidence can be excluded when prejudicial or confusing? Why not just stick to the usual thing (pages 6-7) (Sotomayor says the same on page 26.)
My thoughts: The majority seems wrong here? The other approach just obviously seems better?
Concerns about the majority's approach:
Sotomayor: The majority, declared some things official, but refuses to declare things unofficial. Likewise, they declare some things immune, but refuse to recognize anything as prosecutable. (pages 27-29)
Jackson: Yeah, this leaves it in the court's hands, an arrogation of power to the judiciary. (Pages 13-16)
Barrett: I think the elector things were unofficial. (page 3). I also think the Court should have said that they had presumptive immunity, not left it undecided between that and absolute (pages 1-2).
Roberts, scathingly: We've had no briefing, and it's been expedited. One of you (Sotomayor) wants us to declare everything unofficial, and the other (Jackson) wants us to "exhaustively define every application of presidential immunity." Stop pretending that we're infallible. We decide what is needed, and remand, as per time-tested practices. (page 41)
Sotomayor: That's what you claim, but you still wrote more than lower courts even considered, or any parties briefed, regarding what is official. It's judicial activism in designating some conduct as official, but saying nothing about the rest.
My thoughts: The majority decision looks like a compromise between some justice who wanted absolute immunity, and others who wanted more moderate things. They said what they could agree on, and remanded the rest, reproducing the reasoning available to each side. So Roberts is probably not really being fully honest as to the motivations here (though some of the questions are genuinely tricky, like whether a speech is official), but neither is Sotomayor in representing this as plainly being that they're biased towards the one side.
Fears:
Sotomayor: The President will be immune for ordering assassinations, coups, bribes for pardons, etc. (pages 29-30)
Roberts: Your chilling doom is disproportionate to what was decided (page 37). You are just fearmongering with extreme hypotheticals and a future where the President feels free to violate criminal law. (page 40) You need to be more concerned about an executive branch that cannibalizes itself with prosecution.
My thoughts: Disrespect is a legitimate concern. I'd imagine, though, that assassinating rivals, or attempting a coup would be something that the court would rule as beyond the President's authority. This would probably defuse a lot of the online complaints about this opinion. The bribes for pardons thing is weird, because it deals with something agreed to be within the exclusive powers, even by the government.
And that's the end of Sotomayor's opinion.
Some closing thoughts:
I think overall the responses to Sotomayor were mostly sufficient (excepting the evidence part). That said, this particular opinion of hers was actually not bad (except the last page or so); far more compelling than the Grants Pass one.
Barrett's opinion definitely was the most compelling to me.
Thoughts? Did any of your assessments differ?
I'll probably get around to reading and writing on the two remaining cases from Monday at some point, and maybe I'll write something on any insights I've gleaned overall about how the justices operate, if I can think up enough to make a post about.
Felagund
2yr ago
Well, Wizards of the Coast is making Aragorn Black.
This doesn't even make sense storyline wise. What with Aragorn being descended from the kings of Numenor, it's not as if he could be from some distant land. I suppose there is still the possibility that all the Numenoreans are black, but, Arwen's white in the same picture, and she, being the daughter of Elrond, is closely related to the line of the Numenorean kings.
It's clearly for the sake of diversity, but couldn't they just do things in their own intellectual property instead of messing with what belongs to others? There'd be no harm in making up a ton of new Magic characters who just happen to be black, instead of changing already beloved characters from who they are.
But at least, could they have gone with someone who it would not mess with the backstory, like Gandalf, who has no national origin? I suppose that would make the moniker of "The White" a little ironic, but that's still better than the current state, to me, at least.
This significantly decreased the chance that I get cards from that set. I play, (but I don't spend very much on it), but if this is supposed to appeal to a fanbase, whether to get them to start playing, or get them to spend more, it would probably be wise not to alienate them. Why not put your diversity where it won't hurt your bottom line?
Rings of Power had some questionable things racewise (and a whole lot more unquestionably bad things in other domains), but at least it wasn't doing this.
Supreme Court Term Limits
In a thread recently a bunch of you considered the Biden Supreme Court term limits proposal not that bad. Steven Calabresi just wrote a piece on just how radical and worrying it is. I'd realized things were bad, but not how bad.
Let's set aside the minor things I was talking about before, like how the proposal would lead to two new justices each term in a way that would increase how politicized the court is. Those are dwarfed by Calabresi's concerns.
One thing I hadn't sufficiently thought about is the effects of this being a statutory and not constitutional proposal. The chief one, of course, is that they only need to get a trifecta, not a supermajority, to pass the bill. Well, how likely is that? Manifold puts it at a 21% chance of a democrat trifecta. And if that happens, there's a 65% chance they end lifetime appointments. If I can multiply, that's about a 14% chance of this happening. I assume themotte is numerate enough to realize that for sufficiently important events, that's really high.
Okay, so what would happen? Unfortunately, we don't actually have a draft bill on hand. What we know is that this proposal would add a justice to the court every two years, with 18 year terms. There are two problems with this, as stated: first, it's blatantly unconstitutional, and second, how do you get this to combine with the current system?
It would be unconstitutional because the Constitution provides for "in good behavior." Calabresi clarifies that under British law this would mean "life, unless you commit felonies," and in the context of the American Constitution would be likely to require impeachment. In order to evade that (recall, they do not plan for an amendment), they are likely to have them graduate to some nominal title like "senior justice" with basically no power (maybe still let them play a role in the "which state gets the water rights" disputes, but not anything else), because the Constitution gives Congress power to shape appellate jurisdiction.
The second issue is how to start this up. The way that has only minor harms is that they could make the limits start only for future justices. Maybe each seat switches to 18 year terms after the current inhabitant resigns or dies, with the term already partway through to align with the biennial appointments. But let's face it, there's no way they choose this. Their concerns lie entirely with the current court; the term limit proposal is merely a nice-looking vehicle to attack them through. It would make no sense for them to ignore the reason that they're passing this. What they'd actually do is immediately phase out people as soon as they reach 18 years. That would mean Thomas, Alito, and Roberts would be immediately gone. They would then promptly replace them with three new rubber-stamp progressives.
I imagine the court may well, when it would first have the opportunity, strike down the stripping of jurisdiction as unconstitutional. I'm not sure. But that wouldn't get rid of the three new justices just installed. The court would then sit at 6-6 (with, I imagine, the conservatives being significantly more willing to break ranks than the liberals). The first expansion of the court since the 9-justice court was established in 1869. This is the first serious threat at court packing in nearly a century, when FDR pushed for it. (I wish some amendment to stop court packing had been passed during the good while when it was uncontroversial.)
Of course, Republicans would, upon gaining their own trifecta however many years later, promptly then adjust the rules to their liking. The net result of this will in the long term be the end of the independence of the federal judiciary, seriously harming things like equality before the law. So much for caring about democracy and so forth.
Will this happen? Probably, if they get the chance. Sinema and Manchin will both be gone, so there's not much risk of filibusters surviving. Posing it as being about term limits, instead of court-packing, dramatically lowers how radical it seems, making them more likely to do it. And 36 senators have already signaled that they are already willing to substantially mess with the court by proposing the No Kings Act, so it's well within the Overton window. No chance Kamala is more moderate on all this than Biden is.
Okay, well, what can stop this disaster? The main things are: hold onto the Senate, hold onto the presidency, or get moderate democratic Senate candidates to say they won't go along with it. The last is tricky to do rhetorically ("term limits" sound good, as seen by the positive reception it got here). So it's not the easiest to convey that the democrats are now the party threatening our system of government. The easiest way currently is to win in the Senate. The Democrats have to basically hold onto every seat, including those in red states. Unfortunately, they have a moderately high chance of doing so, but Montana's Jon Tester, at least, has a greater than 50% chance of losing his seat. Should these fail, I hope one of the liberal justices can be convinced to break the usual custom against political advocacy to speak about how bad an idea this is. I'd also try convincing Obama to come out against it, if there's any way to do so, as he holds influence without (I imagine) being quite as scrutinized and purity-tested and generally pressured by whatever the current left-wing discourse is pushing.
As a final note, the No Kings Act is also pretty radical—stripping jurisdiction in immunity cases from the Supreme Court (leaving it at the circuit courts), and instructing Federal courts to ignore any presidential immunity. No way is that last part constitutional, and would even more quickly lead to the destruction of the federal judiciary and end of separation of powers, as (if allowed, which, they're also trying to make it logistically difficult to challenge), with the floodgates opened, acts of this form would be increasingly used to force the courts to do whatever the current congress feels like.
A terrible dereliction of their oaths to support the constitution, on the part of the democrats who support all this, and revelatory that all their claims about the importance of protecting our system of government and its norms has the enormous asterisk that they'll destroy it all, if they're inconvenient.
Felagund
1yr ago
Here's Chevron's overruling. The last cases of the term should drop today, I believe.
Summary:
-
Chevron, which says that agencies must be deferred to by courts, is gone, 6-3. Chevron is foundational to much of administrative law; this is a big deal.
-
Roberts, writing for the court, justifies it in large part because Chevron seems to differ from what is commanded in the Administrative Procedure Act.
-
Thomas argues that it violates separation of powers, in that it is the judiciary, not the executive, who has the right to judgment; Chevron violates that.
-
Gorsuch argues that it conflicts with principles of judicial interpretation, and so principles of stare decisis (he takes a fairly different view of stare decisis from some other members of the court, though similar to Thomas).
-
Kagan dissents, arguing that it is a good default judgment when one comes to ambiguities in the text, is compatible with the APA, and usually reflects Congress's will. She sees this as a power grab by the Court.
Loper Bright v. Raimondo
6-3 (or 6-2), overturning Chevron, standard lineup. Roberts writes, Thomas and Gorsuch each write concurrences, and Kagan dissents. Jackson recused herself for Loper Bright, but was present for Relentless.
Chevron overruled.
What is Chevron Deference? In Chevron, in 1976, the supreme court ruled that a two-step process is used in interpreting ambiguous provisions. First, they check whether "Congress has directly spoken to the precise question at issue," then, if not (that is, if it is silent or ambiguous), they defer to an agency if it "is based on a permissible construction of the statute."
We have two cases here, both related to the Magnuson-Stevens Fishery Conservation and Management Act. (I'm sad they made the main case Loper-Bright rather than Relentless, because the name is less cool.) But I won't bother to describe the details, because I'd have to reread it, and they do not matter; the court only took the case to decide whether to overturn Chevron, and aside from the initial presentation of the origin of the cases, the opinions dwell entirely on Chevron, there is not further reference to the details.
Roberts opens the discussion of the merits with reference to Article III of the Constitution. It gives "the responsibility and power" to judge cases and controversies to the federal judiciary. The framers recognized that things would be unclear, and judges would clarify. And it was proper to the courts to interpret the laws—theirs is judgment, unlike the legislature's will, or executive's force. And this was confirmed in Marbury v. Madison. At the same time, the court has long recognized that exercising judgment often involves respecting the interpretations of the executive branch. In an 1827 case, they explained that "in the construction of a doubtful and ambiguous law, the contemporaneous construction of those who were called upon to act under the law, and were appointed to carry its provision into effect is entitled to a very great respect." This was especially the case when the interpretation of the Executive Branch was from the beginning of the statute, and remained consistent. In 1878, it said, it gave "the most respectful consideration" to executive branch interpretations because "the officers concerned were usually able men, and masters of the subject who were not unfrequently the draftsmen of the laws they were afterwards called up to interpret." But this was only giving respect; the judges were not bound.
Following the New Deal, there was much more administration. "During this period, the Corut often treated agency determinations of fact as binding upon the courts" provided there was evidence to support them. But they did not defer in questions of law. In Skidmore v. Swift, they said that "interpretations and opinions" of the relevant agency "made in pursuance of official duty" and "based upon specialized experience" "constituted a body of experience and informed judgment to which courts and litigants could properly resort for guidance," even on legal questions. But the weight of that depended on the justification: is it thorough, with valid reasoning, consistent, and so forth. It can be persuasive, but not controlling, in Skidmore. Sometimes the Court would be deferential, as when in Gray v. Powell, Congress had specifically given the agency the power to determine what a coal "producer" was. Likewise, in NLRB v. Hearst "employee" was assigned to the NLRB, and the Court merely was to assess whether the NLRB's determination had warrant, and a reasonable basis in law. But these were exclusively about fact-bound determinations, not matters of law. And in Hearst the court said that questions of statutory interpretation are undoubtedly for the courts to resolve. The courts, following, were not consistent in reviewing deferentially, even in matters of fact. Often they just interpreted and applied as they saw it. And so this should not be read as being the Chevron deference rule. In fact, in 1946, just after the previous cases, Congress codified that courts must "decide all relevant questions of law," in the APA.
The APA was enacted as "a check upon administrators whose zeal might otherwise have carried them to excesses not contemplated in legislation creating their offices." Among other things, the APA discusses judicial review, directing that the court "shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action." They are to "hold unlawful and set aside agency action, findings, and conclusions found to be…not in accordance with law." And so it codifies the basic principle that courts judge. Its lack of reference to deference is important, because it does mandate defernce in factfinding, and so where deference is appropriate was contemplated in the act. The legislative history confirms that courts "rather than agencies" are to judge questions of law, as per both the House and Senate Reports.
The APA, then, incorporates the traditional understanding, that courts must exercise independent judgment in determining the meaning of statutes. The courts may seek aid from the relevant bodies, as per Skidmore. In some cases, the conclusion may be that the agency was given discretion. Sometimes this is expressly given, other times the agency may work out details, or regulate under a flexible word, like "appropriate." When the law itself delegates discretion, the court interprets it by recognizing that that delegation is intended, fixing boundaries to that discretion, and checking that the agency made reasoned decisions within those boundaries.
Chevron arose in 1984, addressing whether "all of the pollution-emitting devices within the same industrial grouping" could be treated as a single "stationary source." SCOTUS articulated the now commonly used, two-step rule: (1) check whether Congress spoke to it directly, and (2) if not, check if the agency interpretation was permissible, and if so, defer. It accordingly upheld the interpretation. No acknowledgment of the APA or a doctrinal shift was made. Chevron was not recognized for some time, but was, after a few years, being cited routinely.
Chevron conflicts with the APA's command that the court "decide all relevant questions of law" and "interpret statutory provisions," in commanding that courts are bound to give deference to agencies. This is the case even when there's precedent the other way. It cannot be reconciled by presuming that ambiguities are implicit delegations—while some presumptions are useful for statutes, presumptions are proper "to the extent the approximate reality", and in general, ambiguities and delegations are not the same. Just because Congress did not think of something does not mean that it is intended that an agency resolve that. In other circumstances where ambiguities occur, they are not delegations; courts just have to do their best to work out the single best meaning. The same should happen here. And the proper rule for reading a statute is not to seek a permissible reading, but the best one. Agencies also have no "no special competence" in resolving statutory ambiguities.
The Government argues that they are intended to defer, because agencies have expertise. But often ambiguities are not about technical subject matter, but Chevron would nevertheless give it to the agency. But even when they are technical, it does not mean that Congress gave them authority to interpret. In many other non-agency cases, courts already have to interpret technical matters; and they do so with the help of the parties and amici expositing the matters, with their experience at the disposal of the court. And agency interpretations can still be useful, even if they cannot bind. (Citing a case from the year before Chevron). And so delegating is not necessary to ensure that decisions are "well informed by subject matter expertise." The government argues that it promotes uniformity, but desire for a uniform construction also fails to justify Chevron. Judges interpret it differently. And it is not good to impose uniformity, when that interpretation is uniformly wrong. Rather, follow what Congress enacted. The government further argues that interpretation of ambiguity in statutes amounts to policymaking, and so does not befit the courts. Roberts agrees that policymaking is meant to be left to "political actors." But resolution of statutory ambiguities involves legal interpretation; it is not suddenly policymaking because an agency exists. Judges are to judge without regard to policy preferences. Congress can confer discretionary authority to agencies, "subject to constitutional limits," (I'm pretty curious how much negotiation went into that clause.) in which case courts identify, police the boundaries, and ensure that they exercise their discretion consistent with the APA. Chevron prevents judging, not merely making policy.
Chevron's justification is "a fiction," so the court has since added several limitations on Chevron, to reduce it: "step zero" limits it, in effect, to notice-and-comment rulemaking. But even there, deference is not warranted "where the regulation is 'procedurally defective." Or, if the issue is one of "deep economic and political significance," as then Congress would be presumed to have mentioned it expressly, if it wanted to give the power. It further does not apply to "agency interpretations of judicial review provisions," or statutory schemes not administered by the agency in question. Some have skipped Chevron, or declined to apply steps. SCOTUS has not deferred under Chevron since 2016.
Turning to stare decisis, they should get rid of it. Stare decisis considers the quality of reasoning, the workability, and reliance on it. Each favors scrapping Chevron. Chevron did not consider the APA. Its flaws were apparent, since it has had to be repeatedly limited and "launched and sustained a cottage industry of scholars attempting to decipher its basis and meaning." It's unworkable, as it's ambiguous what exactly ambiguity is. The dissent proves the point, as contrary to Roberts, who thinks that there is a single best meaning, the dissent thinks that Chevron applies when Congress has left an ambiguity or gap. So the court must give up early on interpretation before it finds the best meaning, but there's no clear guideline for how early, exactly. The court's attempts to clarify have added to the unworkability, "transforming the original two-step into a dizzying breakdance," and continues to have more questions about its boundaries, pointing to Cargill v. Garland, the bump stock case this year (May the government waive it? Does it apply to criminal penalties? What about lenity?) And so it is an impediment to "the basic judicial task of saying what the law is." It also is not a stable rule fostering reliance: courts have revised it several times. And in its application, it seriously harms reliance, as revisions in interpretation allow agencies to change their positions repeatedly. And so it undermines the principles stare decisis is meant to promote. They should correct their mistake. Roberts is careful to note that this does not call into question cases based upon Chevron; stare decisis still holds for those.
Thomas writes to note that it violates the separation of powers. (He adds that he agrees with the "lion's share" of Gorsuch's concurrence.) "Chevron compels judges to abdicate their Article III 'judicial power'." But they are Constitutionally required to exercise it. It also allows the executive branch to exercise power not given to it. The executive branch has only the executive power. Chevron allows them to exercise judicial power in interpretation. If you view it rather as letting agencies set policy, then that gives it legislative power. That, too, is not legitimate. Overruling it restores the separation of powers, in this respect.
Gorsuch has a lengthier concurrence, connecting to stare decisis. Gorsuch opens by saying that perceptions of "common law judge" as, judges of the past, able to make new legal rules, and of stare decisis as strictly binding, are both wrong. Common law judges were not understood to be allowed to make new law. Rather, they were examining pre-existing legal systems of the once-fractured England, and applying legal principles common to England and Englishmen generally. Hence, the goal was to find the law, not make it. It bound the parties in that case, but not society at large. Further, past decisions did not bind future judges. They could be given weight, as evidence of the law, but that weight could vary. Former judges were understood to be able to err, and in that case, should be correct. A single precedent was not of overwhelming weight. They mattered more if there were many such precedents, as that was stronger evidence of the meaning of the law. Over time, discarding aberrations, the common law would "work itself pure." Further, different parts of decisions had different weights—the essential reading warranted more attention than stray comments. The latter could be some evidence, but should not be treated "as a serious and deliberate opinion." Additionally, the limits of the adversarial process needed consideration, as not every possible argument was considered.
Gorsuch then turns to article III. He thinks common law "informed the nature" of the "judicial power" vested in federal courts. Other provisions of the constitution present the same understanding. Judges and their precedents could not "repeal or alter" the constitution or laws, per Madison. The opinion regarded the parties. It was only evidence of the proper construction of the law; it was not binding in future disputes. Madison says that judicial rulings "repeatedly confirmed" would be better evidence of the law's meaning than isolated ones. Jefferson thought it would take "numerous decisions" to settle the meaning of statutes. And not everything in a prior decision should receive equal weight. Views beyond the case at hand, for example, should not control, but may be respected. Lincoln presented these views against Douglas. Douglas thought that a single decision of the Supreme Court definitively resolved an issue, for everyone, and those who held otherwise "aimed a deadly blow to our whole Republican system of government." But Lincoln (who Gorsuch sides with), while accepting that they determine the rights of the parties, did not think single judicial decisions settled issues, especially when they depart from the Constitution. Some of these points continued to be echoed afterwards. Majority opinions for some time were written alone, and without consultation by the other justices, because they were understood to resolve it only for the parties.
There are, then, three lessons. First, past decisions may bind the parties, but it does not provide SCOTUS to depart from what the Constitution or the laws of the US say. Per the Constitution, they must amend them or pass legislation through the democratic processes. Hence why the Court has often said the stare decisis is not an inexorable command. The Court has stressed the importance of correcting errors of constitutional interpretation, as they con only otherwise be corrected through amendments. It has been less willing in statutes, but even there has overruled longstanding decisions.
Gorsuch notes that under the Warren and Burger courts, it would overrule about three cases per term, many of them important. More recently they have only overruled one or two per term.
Secondly, while judicial decisions may not supersede, they do merit respect. Precedent can serve to pass down wisdom. The weight afforded that precedent may depend on several features. First, reasoning, as the primary power of the precedent is in persuasion, and poorly reasoned cases do not provide good evidence of the law's meaning. Second, consistency with other decisions, as it is more likely to be correct when it is of a piece with other law, rather than unmoored from it. Workability and reliance are usually not reason enough to stick to things on their own—there is almost always some group that wants to keep things as they are—but they can serve to point to clues that some decision "is right in ways not immediately obvious to the individual judge." The lesson, then, is that the judge should not be guided solely by his own impression, but must "self-consciously test his views against those who have come before, open to the possibility that a precedent might be correct in ways not initially apparent."
Third, judicial opinions should not be read like statutes. Different facts and legal arguments may change the outcome. Stray asides will occur, but cannot control judgment. Opinions should not be combed through. Stare decisis is a tool of judicial humility, not hubris.
Turning to Chevron. Each of those three lessons is relevant.
First, Chevron deference contravenes the law passed in the Administrative Procedure Act. As Roberts had discussed, they are directed to "decide questions of law," and "interpret constitutional and statutory provisions." But under Chevron, they abdicate much of that responsibility. Agencies decide, and may change their mind. Chevron did not bother to cite the APA. It depends on a "fictionalized" statement of legislative desire, in supposing that Congress wishes to delegate, even when it has given no indication of that (citing Kagan's work, before she was a justice.) Its proponents see that as a good policy judgment, but judges have no right to elevate their own fictions above law. Some (pointing to Kagan's opinion) may think that the APA decides poorly in arranging judgment, but it is Congress's opinion that should control, not theirs. And so this would violate the first lesson, in that they need the humility to yield to the law. (A footnote: the dissent suggests the APA allows for Chevron, citing "the finest administrative law scholars," but the APA does not command deference to law professors. And the list of scholars is not complete, so he adds Breyer, who admits that it conflicts with the APA (yes, the one who became a left-leaning supreme court justice), and Kagan's reference to it being fictionalized. This is hilarious. Always read the footnotes.)
From lesson two: stare decisis requires careful testing against work of predecessors. This humility counsels to remember that precedents that are more broadly endorsed over more time, with more coherence with overall law, are entitled to greater consideration than those that are not. Their predecessors considered interpretation of the law peculiar to the courts, from the time of the founding of the Nation. See, for example, Marbury v. Madison. Court's have been willing to give great respect to contemporaneous and consistent views of coordinate branches about the meaning of a statute. But that did not entail deference. It was not bound. The dissent points to a few cases in the 1940s, in which, Gorsuch admits, the Court "toyed with a form of deference akin to Chevron, at least for so-called mixed questions of law and fact." E.g. Gray, Hearst. But that did not last, as in Skidmore the Court returned to the old path. They expressly rejected a rule like Chevron. Chevron is a break from decisions, not a continuation, and nearly defied them.
Additionally, it does not fit well with other portions of law. For example, after abuses in the colonial era, the Constitution attempted to ensure judicial independence under various provisions. Chevron undermines that, but preventing judges from exercising judicial power, forcing them to abandon the best reading, and repeatedly changing it, guaranteeing systemic bias in favor of whoever holds executive power. It undermines also the due process principle that no one may be a judge in their own case. Further, construing statutes as a reasonable reader would have read them when the law was made ("textualism") is traditional, confining judges to lawfinding, not making, and serves the due process principle of fair notice. Judges could not simply change out meanings as the meanings of words changed, without legislative revisions, or the people would be "slaves to their magistrates." But this does the same constantly changing the meaning and revising the law, except with bureaucrats rather than magistrates. It further conflicts with lenity: that ambiguities in penal laws should be against the government, and in favor of individuals. This serves to safeguard liberty, and strengthen the separation of power, but putting punishment more squarely apart from the judicial deparment. But under Chevron, parties often use ambiguities to penalize. Overall, this transfers powers to Article II, tilts justice to the most powerful, legal demands change frequently without corresponding changes in law, and people must guess about their legal rights. All this is a sign that a wrong turn has been made. (Footnote: the dissent characterizes it as a canon of construction or a presumption, and so it fits with law, but presumptions and canons are usually older than the United States, and many protect the Constitution, like the federalism canon presuming that federal statutes do not preempt state laws, or the presumption against retroactivity protecting the Constitution's ban on ex post facto laws. But Chevron undermines the Constitution's promise of an independent judge, and conflicts with the previously listed host of legal presumptions.)
Workability and reliance also serve to show that it does not comport with the "historic tide of judicial practice" but is an "aberrational mistake." Chevron has had to be supplemented so many times that it cannot be agreed how many steps it requires. In step zero, Mead said that, before deciding whether Chevron applies, courts must decide whether Congress meant to delegate authority to interpret. But when should that be? (I don't quite follow the complaint that follows.) Mead's test proved also to be indeterminate, and has often been ignored. In step one, it is unclear when it is ambiguous or not. In step two, there is disagreement when interpretation is reasonable, but wildly different standards of reasonability there are possible, and in use (he cites Kavanaugh, before he became a justice). In the cases before the court, as they worked their way up to them, some thought that the act was ambiguous, and the agency's regulation permissible. Some thought it unambiguous, prohibiting the rule. Some others thought there was "clear textual support," but would not say which step of Chevron that was due to.
With regard to reliance, "the whole point of Chevron deference is to upset them." Executive officials can change the interpretation at any time. Individuals can never be sure of their legal rights and duties. In Brand X, during Bush's administration, they allowed a rule to change; the same rule was changed under Obama, Trump, and Biden—four changes total, within twenty years. This hurts reliance. This especially hurts ordinary people, not large entities with lobbyists persuading changes of the rules, and lawyers keeping track of current requirements. Gorsuch cites two opinions that had come his way of people hurt by instances of Chevron, the latter of which involved a change in law, as well as other opinions in other courts to similar effect. The Government acknowledges that Chevron is heavily in favor of the government, against many individuals. But it thinks that it is too fundamental and important to undo, setting ground rules. But the proper ground rules are the Constitution, the APA, and precedents, not judge-made fictions.
Onto the third lesson (recall: judicial opinions are not like statutes). In Chevron itself, many of the cases cited supported respectful consideration, not deference. But the opinion itself spoke differently. But this was not the formulation of the government, so there was no adversarial engagement. The APA was not considered. It did not address contrary precedents. It "barely bothered" to justify the deference. The reasoning was not of high quality (as acknowledged by supporters). It was not immediately realized that it was to usher in a revolution. Of the 19 cases in the next term related to deference to statutory law, Chevron was cited once. But it was only with Scalia that it began to change, which he admitted was a sharp break from prior practice, but advocated as it would be easier to follow. But, in fact, it was not, and Scalia later recognized his error. (Gorsuch notes that some of Scalia's motivation was to deal with judges ignoring plain meaning and turning to legislative history and purposes. Scalia saw Chevron as likely to prevent that. But the better solution is returning to textualism, which he later championed, and was widely successful.) Other members have also decided that it was problematic, since, and it has not been applied by SCOTUS since 2016. This includes in technical matters. And so this cautions against "continued reliance on Chevron's stray and uncovered digression. The Supreme Court has over 500 volumes of cases; there is something out there supporting nearly anything. It is not their place to pick passages they like and demand perpetual obedience to them; that turns stare decisis from humility to judicial opportunism.
Respect for precedent "keeps the scale of justice even and steady," but does not require or tolerate refusal to correct mistakes. The Supreme Court had overruled itself by 1810. It overruled itself now less frequently than under Warren and Burger. Per Justice Douglas, the longest serving justice, in his experience, new supreme court justices would begin revering precedent, but would over time turn to the constitution, rather than predecessors' interpretations thereof, reexamining them. On the other hand, judges would issue "new and startling decisions," and demand they be followed under stare decisis. Chevron is such a revolution, masquerading as a status quo. This will just mean that courts will do as the Supreme Court has done since 2016, and as all courts did from the founding until the 1980s: resolve cases without systemic bias towards the government. And so proper respect for precedent counsels precisely the course that they are taking. "*Stare decisis'*s true lesson today is not that we are bound to respect Chevron's 'startling development,' but bound to inter it."
To the dissent. Kagan writes. She opens with a summary, framing Chevron as "almost obvious" and the majority as power-grabbing.
The problem, she opens, is that regulatory statutes often contain gaps. Sometimes they are intentional. Congress may have wanted the agency to fill it in, and figured the agency would know better than Congress. Or, Congress might disagree over some question, and so leave it to the agency. Other times, they might be accidents, whether from sloppy drafting, or the limits of language or foresight, or due to future, unforeseen issues. The matter may be too varying to be captured in its every detail.
Kagan gives some examples of the problems Chevron confronts:
- The FDA regulates proteins. When does an amino acid chain polymer count as a protein?
- The Fish and Wildlife Service designates endangered species, including "distinct population segments." What makes them distinct?
- Medicare reimbursements reflect "differences in hospital wage levels" across "geographic areas." How should a "geographic area" be measured?
- Over the Grand Canyon, rather than having too much noise from aircraft, the FAA is to "provide for substantial restoration of the natural quiet." How much noise? How much of the park? And how many hours a day? must it be for it to satisfy the "substantial restoration" requirement?
- Or, in Chevron itself, permits are needed for constructing or modifying "stationary sources" of air pollution. Does that refer to each pollution-emitting piece of equipment, or the entire plant (and so allows avoiding permitting if emissions are shifted between equipment within the plant, with no net change)?
All these are ambiguous, and not settled by Congress. There is no "best meaning." So who decides? The presumption, or default rule, should be agencies, as the court has long thought. (Kagan notes that presumptions like this are common. For example, with the presumption against extraterritoriality, the Court assumes Congress means statutes to apply only within the United States, unless Congress makes the opposite clear. Likewise, presumptions exist against retroactivity, or repeal by implication. In all these, Congress legislates against that stable background rule, and so they are reliable guesses as to legislative intent.)
Why might agencies be deciding be better? First, they often know more about the subject matter. See the protein example, where judges might not even know what it means, or the geographic region example, where judges might know the most relevant and important senses in which regions might or might not be distinct. With their expertise, agencies could better decide.
Second, the agencies would better know how a "complex regulatory regime" functions, and what is needed. In the region example, in the case of squirrels, the region could consider other examples. Kagan cites this as comparable to common law (no doubt with Gorsuch's concurrence in mind) making better decisions after seeing variations on a theme. Or in Medicare, considering different approaches will lead to a better understanding of what makes practical sense.
Third, the reflect that resolving statutory ambiguities is often a question of policy. That is plain from the Grand Canyon example; "substantial restoration" is clearly meant to be a policy decision, not one where judges determine the specified number of flights. Or Chevron's "stationary source" requires reconciling competing interests.
Deference is not always appropriate. The court has fine-tuned it to strip out cases where there is no reason to prefer the agency. These are not a flaw in the scheme, contra the majority's presentation. It makes sense not to apply it where it is not the relevant agency, or did not use its rulemaking authority, or in extraordinary cases of vast significance. Such restrictions "give interpretative primacy to the agency when—but only when—it is acting, as Congress specified, in the heartland of its delegated authority."
That framework reflects sensitivity to the roles of the branches: where Congress has spoken, only its judgments matter, and courts decide that. When that is not the case, it is more fitting if the agency does that, for the reasons above. "The court does not insert itself into an agency's expertise-driven, policy-laden functions."
The majority responds, unconvincingly (she says), that agencies have no special competence in resolving ambiguities in regulatory statutes. But deference only applies to fill statutory silence. The courts do not have special competence in determining questions of statutory interpretation like those listed in the examples given—agencies do. Secondly, they complain that gaps do not necessarily indicate congressional intent that agencies should decide. Kagan agrees that that isn't necessary, but Chevron is a presumption, what the default is. And this is a better default, because of the reasoning above. And even though many ambiguities are unintentional, it would still want the agency. And if Congress would do otherwise, it need only say so, but it has only twice (as per her knowledge), in hundreds of statutes, done so.
The majority mostly argues from the APA. But the APA does not resolve the Chevron question, as it does it is indeterminate on the matter. It does not provide any standard by which the court should review (deferential versus de novo), merely that it should. (This applies also to the legislative history.) In other contexts it specifies standards of review—deferential, with respect to fact-finding and policy-making—but here it does not. And within one specific portion, it refers to de novo review.
Most of the administrative law scholars of the time thought that the APA allowed deference: Jaffe, for example, says that courts should check if there is discretion, and defer if reasonable, which looks not far from Chevron. The Supreme Court gave no indication that the APA rejected agency interpretation, even though it did not always give the deference itself.
Kagan argues that 706 was generally understood to display the state of law at the time regarding judicial review, but they were, shortly preceding the APA fairly deferential. And so the relevant standard for interpreting it is that time period, not the overall backdrop of the nation's history. In Gray, widely considered the leading case on such interpretations, it deferred to the agency on the term "producer." In Hearst, they deferred on the term "employee." She rejects the majorities "taking a single stray sentence from Hearst to suggest that both Hearst and Gray stand for the opposite of what they actually do." So then the statute would allow for deference. She notes that the majority first seem to distinguish between purely legal and mixed. She'd be glad if they confined it to the purely legal, but does not expect that they mean it so. Often terms are defined through specific cases. (E.g. are newsboys employees?) And so the majority's distinction does not make sense; if it defers on whether newsboys are employees, it defers on what "employee" means.
Kagan also argues that the Court's inconsistency in applying deference would mean that 706 could not be argued to prohibit deference—it was understood (as the majority agrees) to represent prevailing law. So today's decision is groundless.
Abandoning it subverts stare decisis. This decision "will cause a massive shock to the legal system, casting doubt on many settled constructions of statutes and threatening the interests of many parties who have relied on them for years."
Chevron is entitled to particularly strong stare decisis because Congress remains free to change it, unlike in constitutional cases, and Congress has not done so. It could have abolished it across the board by amending the APA, which it has not done, or more narrowly in specific laws, which it has hardly ever done. Second, it is much more than a single decision, but has been upheld by the Supreme Court over 70 times, and cited by federal counts over 18000 times. It is "as embedded as embedded gets in the law." The majority not using it since 2016 was merely in preparation not to use it, and so making up its own justification for its overturning; she thinks this a mockery of stare decisis.
She rejects the claim of unworkability. While, sure, judges disagree on ambiguity, there are other cases where there are rules about ambiguity: in contract law, you rule against the drafter in ambiguous cases; in lenity, you rule in favor of criminal defendants. There are numerous other cases. Chevron actually, per studies, increases agreement between judges. And as to the second argument, about needing all these exceptions—well, there aren't that many, and they aren't hard anyway, in ordinary cases.
The majority's alternative, on the other hand, isn't easy: judges who argue about Chevron's "ambiguity" will definitely disagree about what exactly applying Skidmore's "respect" means. And there are complexities, requiring instance-by-instance resolution, in applying flexible words like "appropriate," which is not at all rare.
And the strongest stare decisis factor is against overturning Chevron: it would be a massive "jolt to the legal system." Congress and agencies have depended on it, and presupposed that statutory ambiguities were to be resolved by the agencies. She does not think the majority's alleviation of the problem that decisions held as reasonable under Chevron not being overruled for that is good, but insufficient. Many such determinations were never challenged. Courts will undoubtedly come up with "special justifications" to bring it up.
Judges are not experts in the field and are not part of either political branch of the Government.
With that quote of Chevron, Kagan opens her conclusion. She poses the majority as not respecting Congress' judgment. As giving courts the power to make policy calls, including weighing competing goods. Putting them at the "apex of the administrative process" in every context. Courts will command federal regulation everywhere, which is not what Congress gave them. And all this involves disrespecting precedent, without special reason, and producing especially large disruption. And this is not a one-off in its treatment of agencies, see SEC v. Jarkesy.
My thoughts:
I thought Roberts was better in his interpretation of the APA, though, looking at the text of it, it requires a little care. I don't think Kagan's right on the reference to de novo in it; that does seem to be the baseline there; and her interpretation of the legislative history seems wrong. I think the majority presents Hearst fairly, as allowing deference in fact, but not in law. Kagan's wrong to suggest otherwise. Kagan is right that there are often genuine ambiguities; I think the majority left enough room for treating the deliberate ones as delegation. She's also right that effects will be sweeping. We'll see if it shows up in the media in coming years. I wonder if Kagan should be considered correct with regard to statutes formulated after a theory of deference was considered established, at least in certain domains? As then Congress would have expected ambiguities to be treated with deference. Overall, I'm with the majority. But Kagan reads as significantly more serious than, for example, Sotomayor dissents seem to. Gorsuch and Thomas seemed generally correct in their interpretation of history, though some of their prescriptions would be pretty radical.
Felagund
1yr ago
Supreme Court, Again
I'm back, because the nine are back.
Connelly v. United States
9-0, opinion by Thomas.
This deals with a question about estate planning. Two brothers, Michael and Thomas Connelly, owned a company, Crown C Supply, and agreed that Crown would be contractually obligated to purchase out the shares of either of them upon death (funded by a life insurance policy on each brother, owned by the company). Michael died, the money was paid out, and Crown purchased his stock at a value of 3 million. Then came the IRS, with an audit. An accounting firm that Thomas hired valued the company at 3.86 million, then, with the 77% share held by Michael, the valuation of the shares in the estate were about 3 million. The IRS, on the other hand, argued that the value should be 6.86 million (the 3.86 million valued before+3 million that was about to be paid out), and so there was about $900,000 more owed. The next two courts both ruled in favor of the government, and now, the supreme court rules unanimously for the government.
Now, why?
Redemption of stock is argued to have a net-zero effect on any given investor. That is (example borrowed), if you hold an 80% share of 10 million in cash, and the remaining 20% share is redeemed for 2 million, you'd now have a 100% share of 8 million, which is the same valuation as before. Hence the need for a corporation to redeem shares doesn't reduce the value of the shares.
Further, if someone else had bought the shares off of Michael, they'd be expecting to get the life insurance payoff in the valuation of the company, and so they'd be valuing it at the higher value.
Thomas (Connelly) argues that someone attempting to buy the value, separately, can't capture the value of those insurance proceeds, as those are about to be spent, and should be considered a liability for the company. (Clarence) Thomas rebuts this, saying that this is the same in essence as asking what the value of 77% of shares would be after the redemption had taken place, under the smaller valuation. But the relevant question in estate taxation is what the shares were worth at the time of Michael's death. (Clarence) Thomas further points out that this would lead one to think that Thomas (Connelly) would have a larger ownership share in a company with the same valuation, which doesn't make sense.
My own thoughts: my initial, reaction to the posing of the question was thinking that this was unfair for Connelly, as it felt like a liability, but as I read it, I was convinced that the court decided correctly. (Clarence) Thomas's arguments are persuasive.
Truck Insurance Exchange v. Kaiser Gypsum Co.
8-0. (Yes, eight. Alito recused himself.) Opinion by Sotomayor.
Unsurprisingly, there are many lawsuits due to damage from asbestos. This case dealt with whether an insurer would be able to "raise" and "be party to any issue" in bankruptcy. It is ordinary to put up a trust in such situations in order to pay for future claims against a bankrupt company. In this case, there was a plan in a proceeding of an insured company which handled outstanding claims that would be uninsured versus ones that would be insured differently. It provided more care to be sure that the claims would not be fraudulent when it would be uninsured. Truck Insurance Exchange wanted to be able to participate in the proceedings as an interested party in some relevant respects, as the bankruptcy code allows any "party in interest" to do so. The court does not rule on Truck's arguments about the case in particular, but does say that it is a party in interest, and so entitled to be able to object. This is a straightforward interpretation of the relevant portion of the bankruptcy code, as it was put in an open-ended manner. (The court also touches on legislative intent to back this up.)
There's probably a little more detail here that could be worked through, but I didn't entirely. This seems a sensible ruling, although I would be curious exactly how far "party in interest" can be made to stretch. Probably not excessively far.
Becerra v. Apache Tribe
5-4. Opinion written by Roberts, and joined by Gorsuch and the liberals (Kagan, Sotomayor, Jackson). Kavanaugh writes a dissent, joined by Thomas, Alito and Barrett.
This is a case dealing with Indian tribes and allocating money to them for healthcare costs. The majority rules that they should get more money. I still need to read most of the dissent, but presumably they disagree.
I'll write up this last case properly later, but I'll post this comment as is for now.
Felagund
1yr ago
And in her resignation, she doesn't acknowledge the plagiarism, pinning it rather on racism:
Amidst all of this, it has been distressing to have doubt cast on my commitments to confronting hate and to upholding scholarly rigor – two bedrock values that are fundamental to who I am—and frightening to be subjected to personal attacks and threats fueled by racial animus.
Felagund
10mo ago
I was curious to see what were the top comments from the last month that didn't make it here, so we have:
@Walterodim, on the "factchecking" of Trump
@functor, on the downfall of the UK
A throwaway, on ideological pressure on doctors
@DTulpa, complaining about the media response to Harris
@raakaa, on the double standard of people being against cancelling Home Depot workers, but putting up with cancelled Olympians
@ABigGuy4U, on biased fact-checkers
@DTulpa, expressing discontent with the disorderly homeless
@functor, on the problems in the UK
@Walterodim, characterizing Tim Walz
@Walterodim, on election integrity concerns with a leftist tinge
@urquan, on women, and the words of the delphic oracle
@gattsuru, on European censorship
@SteveKirk, on Musk and corporate (in)competency
@naraburns, on pro-knifing counterprotests
@Walterodim, putting media activity in the active voice
@self_made_human, on immigration accelarationism
@IGI-111, on the political effectiveness of economic idiocy
And that's the first page, down to a net upvotes of 47. (All but two had at most 4 downvotes.)
The Quality Contribution system posts seem to be considerably more effortpostish, and the ones passed over are more likely to be applause-lights. So it seems like good selection. It's interesting that the slate of posters for each kind of post is not the same—some of us (e.g. @Walterodim) seem to be pretty good at making a not overly long reply that's popular, while not making AAQC-style comments. Others of us effortpost more. Both can be good.
Anyway, thanks to @naraburns for the work in collecting these, and to @ZorbaTHut, that we have this place.
Felagund
2yr ago
I'd posted a while back about how Wizards of the Coast was making Aragorn black in the soon-to-be released Lord of the Rings Magic set.
Since then most of the new cards have been released.
There were several more race swaps—see, for example Theóden, along with many other Rohirrim, was made black, but not Éomer. If they had made them all black, this would have been closer to my original suggestion—that they change races, if they really must, do so in ways that make sense in the world. But they did not do that for some reason, and keeping Éomer white makes no sense, if you're changing the rest of the Rohirrim.
Nevertheless, I was surprised at how good the set was, if you ignore the race changes in the art, for fans of Lord of the Rings. They referenced all sorts of relatively obscure things, had cards that had thematic abilities, (for an especially fun example, see how Merry+his blade or Eowyn can defeat the Witch King, who is ordinarily rather invulnerable), or just had fun flavor text quoting from the book, or nice art. And was faithful to the lore in another respect where Rings of Power was not, although I don't remember such a character actually existing…
Ignoring the race issue, I was very impressed overall. I think it's interesting that they were willing to put so much effort into it, while at the same time having unnecessary race changes. I suppose it's not entirely the same people making the various decisions. But I had read it as first as "we don't care that much about Lord of the Rings," which now seems to be false. They must have cared both about signaling leftist politics and about making a good product, and so this was the result.
I might be willing to overlook the problems, because Tolkien is dearer to my heart.
Felagund
10mo ago
How do you justify this, given that you find the majority of her policy positions abhorrent?
Felagund
1yr ago
Obviously, the correct move is for the Fish and Wildlife Service to ban bump stocks because the decrease in accuracy could increase unintentional bird deaths.
The other four cases I didn't get to before:
Erlinger v. United States
6-3. Opinion by Gorsuch, joined by Roberts, Thomas, Sotomayor, Kagan, and Barrett. Roberts and Thomas write concurrences. Kavanaugh dissents, joined by Alito and by Jackson in part, and Jackson has another dissent.
This case is about the application of the fifth and sixth amendments in the right to a jury. The case is over whether the determination whether several past offenses are on separate occasions or one occasion requires a jury, or whether it can be judged by a judge.
There are two main relevant background cases to the various opinions, though several others are cited. In Apprendi, in 2000, they ruled that in general, facts affecting "the prescribed range of penalties" in a way that harms the defendant must be judged by a jury. In Almaendarez-Torres, in 1998, they ruled, including Thomas, that judges could find facts regarding whether past sentencing, like checking whether they had a past conviction, without the jury needing to rule that. They disagree on how broadly these apply.
Gorsuch, writing for the majority rules that this case requires a jury. He argues that Almendarez-Torres is only a narrow exception, and seems kind of open to overturning it anyway. He addresses the practical concern that bringing up past offenses would prejudice the jury by mentioning the option of bifurcating the trial, where first they would judge innocence and guilt in the present case, and then, for the purposes of sentencing, consider whether he committed the previous crimes on different occasions. He acknowledges that jury trials are not the most efficient, but thinks that it is important.
Roberts notes in a one paragraph concurrence that in the case of violations of this, they should bring up harmless error review, where it must be considered whether any harm is actually broght about by the violation of this.
Thomas writes briefly to argue that Almandarez-Torres should be overturned. He was the deciding vote in that case, but has since changed his mind and repeatedly argued against it.
Kavanaugh dissents, with Alito, and Jackson, in part. He reads Almendarez-Torres more broadly, making it about recidivism in general, rather than more narrowly about whether cases exist. He cites all 12 circuits in agreeing that judges may decide whether they were different occasions. He brings up that the harmless-error rule will mean, at least, that people already convicted don't need to be released just because their right to a jury had been infringed, as presumably in most cases, a jury would come to the same decision, as it's often rather obvious that they were on different occasions. (Even in this case, the three felonies were committed on three different days of one week, at different locations, etc.—which definitely seems like different occasions.) It's this third part about it being harmless that Jackson refuses to sign onto, which is kind of crazy. Does she want a ton of people released, when she thinks it's right? I don't get it. Kavanaugh then spends the remainder of his opinion arguing that Almendarez-Torres should not be overruled, turning to history to argue that it's not egregiously wrong, and then also arguing that even were it wrong, even were it egregiously wrong, and it's still of little enough harm, and bad would come of it (like bringing up prejudicial matters), that, by stare decisis, it should stay. (Kavanaugh also at one point cites some of Barrett's work on Stare Decisis before she was a justice, which I found interesting.)
Jackson writes to argue that Apprendi is bad, that more should be able to be done by the judge. She turns to some history. (It should be noted that Apprendi does not strip discretion from judges in sentencing. It only requires the jury to determine which sentencing scheme should apply—the judge still often has some level of discretion, of something between maximum and minimum sentences. Apprendi only rules that the jury is needed to decide which scheme.) She argues that fact-finding at sentencing is different from what the jury does—for example, they can consider more factors—and that juries only really have to decide things about guilt or innocence, not what sentence it should receive. She also points out that judges cannot. Jackson argues that Apprendi is harmful, in that it limits legislatures' ability to lay down sentencing rules, leaving more discretion with judges. She points to as particularly sobering that there are greater racial disparities in sentencing between "similarly situated Black and White male dependents" since Apprendi was ruled, and so she concludes that it might hinder having a fair sentencing system. (My own thoughts briefly: my snap reaction was to point to racial disparities in crime, to make what she is saying laughable, but that is less obviously the case since she says that it is for "similarly situated" defendants. I would have to read the paper, but don't care enough to do so. I'm still inclined to think that it's most likely due to differences in behavior, though, if they are more or less likely to have factors that make a more or less lenient sentence better—the legislative rules probably weren't considering as much as the judges were.) Turning from Apprendi to the court's judgment in this case, she argues, like Kavanaugh, but at greater length, that it would be prejudicial, and seems to think that that would be the case even in a bifurcated trial. Jackson also thinks that there are practical limitations, because the judge is more used to considering things than juries, claiming that this is "unworkable."
Texas v. New Mexico and Colorado
Opinion by Jackson, joined by Roberts, Sotomayor, Kagan, and Kavanaugh. Gorsuch dissents, joined by the rest.
This case is a little different from others in that it isn't the result of appealing things up to the court, but the Supreme Court has original jurisdiction. This case is about the water rights of Texas and New Mexico over the Rio Grande. More groundwater has been pumped in New Mexico, which effectively ends up lowering the amount of water that Texas receives. Texas and New Mexico came to a consent agreement. The question now is whether the United States can keep that agreement from going into place.
Jackson's analysis, with the majority, is fairly straightforward: the consent agreement tries to get rid of the US claims. The United State's claims are valid, because it requires use in the Rio Grande Project and Downstream Contracts, and must supply water to Mexico. Further, it was granted a place in this in 2018, and nothing has changed. But a consent agreement can't get rid of the claims of other parties, so it should be fine.
Gorsuch argues that: first, the consent decree, in setting where it should be measured and how much water to be delivered, is consistent with the Compact. Second, "the consent decree does not impose any new improper duty or obligation on the federal government or deny it to the ability to pursue any valid claim it may have." That is, it does bind the federal reclamation authorities in their use of water, but it does the same thing as they have been doing for decades, so this can't be improper, and the government doesn't argue that it would prevent it from doing anything that it needs to. It also doesn't get rid of claims from the federal government. He accepts the recommendation to "dismiss them without prejudice"—that is, so they can be relitigated—which Gorsuch says is appropriate and the preferred way to address remaining questions after an interstate pursuit. (Recall that, because this was a case between states, this is part of ordinary jurisdiction. Dismissing them without prejudice would allow them to go through lower courts, instead of straight to the supreme court.) He cites another case to back up that dismissing without prejudice is fine. Gorsuch argues that the majority is wrong that this would dispose of federal claims, that they show no reason not to follow their ordinary practice in original jurisdiction cases, they do not really show in what capacity the US has claims, that the majority ignores the usual water law jurisprudence in that the federal reclamation projects are supposed to comply with consent decrees, and that it doesn't follow the principles of consent decrees, because this compact grants what the US had originally sought in this case. Gorsuch then argues that the majority is wrong in its turn to the majority's past admittance, as they were asked in the 2018 case not to reach the question then as to whether the US could independently bring claims, and that the reasons that they had taken the unusual step of allowing them to participate then no longer apply.
I found Gorsuch pretty convincing. As a side note, it's not clear to me why this ended up roughly along the left/right split. Are the liberals, Roberts and Kavanaugh more sympathetic to the federal government having more power in general?
Department of state v. Muñoz
6-3 conservatives vs. liberals. Barrett's opinion, joined by all conservatives but Gorsuch. Gorsuch concurs in the judgment. Sotomayor dissents, joined by the liberals.
Sandra Muñoz and Luis Asencio-Cordero are married. Muñoz is a US citizen, and Asencio-Cordero was here illegally. There is a process for him to enter, but it requires him returning to his home country, and applying for a visa with the consulate. He was declined, claimed to be a member of MS–13. Muñoz filed to challenge the decision, claiming that she has a right to live with her spouse, protected by "liberty" in the fifth amendment, that the visa denial "deprived her of this interest, thereby triggering her right to due process; the consular officer violated her right to due process by declining to disclose the basis for finding [her husband] inadmissible; and this, in turn enables judicial review, even though visa denials are unreviewable."
Barrett argues that that fails at the outset: there's no right to bring her noncitizen spouse to the United States. Some relevant background she gives: visa denials are generally nonreviewable, with the exception of when it is alleged to burden the constitutional rights of a U.S. citizen (hence why Muñoz is the one to bring up the challenge), but even then, it's constrained, as the courts can only look at whether they gave a "facially legitimate and bona fide" reason for denying it (under Mandel), not checking whether it's right. The question, then, is did this burden any of Muñoz' rights here.
Under the due process clause of the fifth amendment (note, not the fourteenth amendment), due process is needed before deprivation of life, liberty or property. This includes "heightened protection against government interference with certain fundamental rights and liberty interests." But unenumerated rights of this sort—that is, substantive due process—need, per Glucksberg, "a careful description of the asserted fundamental liberty interest" and it protects only those rights "objectively, deeply rooted in this Nation's history and tradition." The claim here, as formulated by Barrett, is "the right to reside with her noncitizen spouse in the United States," though this is articulated less distinctly by Muñoz. Muñoz asks only for a right that "cannot be unduly burdened without procedural due process." Barrett describes this as unique, "a substantive due process right that gets only procedural due process protection." Barrett thinks that Muñoz fails the second step, as this is not "deeply rooted in this Nation's history and tradition." She cites Madison saying that immigration was "of favor [and] not of right," (Edit: I've since seen something saying that this was not a very strong quote from Madison, as it was in a hypothetical) and cites also various acts which made throughout the country's history which do not have any exception for spouses. Barrett concedes that several acts do involve making it easier for spouses, but rejoins that this is not as a right, but as "a matter of legislative grace. She cites especially Knauff, where the court upheld denying a wife entry, with no hearing given, and the reason confidential.
Further, the right would be odd: a right to intervene in someone else's legal proceeding? Could a spouse challenge a prison sentence, or a deployment overseas? Barrett exposits O'Bannon to show that the court has ruled in the past that indirect burdening of rights do not prevent governmental action. Barrett finishes by explaining Mandel, which had been cited by the pro-Muñoz side. Mandel had involved some professors challenging under the first amendment a visa denial of a Marxist, who came to speak. SCOTUS then said that because they were given a "facially legitimate and bona fide reason," for denying it under the specific provision, "the courts will neither look behind the exercise of that discretion, nor test it by balancing its justification against the First Amendment interests of those who seek personal communication with the applicant." Barrett clarifies that Mandel's citation is actually about avoiding having to adjudicate a question of statutory interpretation, not about procedural due process.
Gorsuch argues that the constitutional questions should not be under discussion, as the information, which is what Muñoz asked for, has been given, and so there is no need.
Sotomayor opens by citing Obergefell. Rather than framing it as a more narrow right, she frames the question as about the right to marry—whether this is a burden of Muñoz's marriage rights. She claims that the majority's claim in Dobbs v. Jackson that that case did not undermine other substantive due process is evidently false, by this result. In their going through the history, Sotomayor dwells more on the entire process that led to this case, with the husband leaving the country, while Barrett had focused more narrowly on the application to reenter (Barrett critiques some of what the dissent does as just going after immigration policy and the competence of immigration officials, which is not something for SCOTUS to judge). Sotomayor exposits the marriage rights given in past precedent. (Among which, she chooses, for some reason to cite Roe v. Wade) She notes, citing Obergefell, that the marriage rights are in these cases evaluated expansively, not as separate individual rights, as Barrett did in this case. (E.g. Loving is about the right to marriage, not to interracial marriage.) She takes it as a given that Muñoz' rights are burdened, as in Loving and Obergefell, the couples were not bound to stay in the places where their marriages were, to that point, legal. Sotomayor argues that Mandel grants Muñoz the "substantive due process right that gets only procedural due process protection," as Barrett characterized it, and so she is entitled to a "facially legitimate and bona fide reason." Sotomayor argues that the majority's concerns about prisons, or removal proceedings, would be limited by the rights already inherent in those persons, and so this ruling would have no effect, unlike this case, where the husband has no due process protection. Sotomayor finishes by turning to Knauff to point out the larger context: public outcry, bills from congress, and eventual admittance. (Barrett responds in a footnote that Knauff was still "good law" that has been "repeatedly affirmed.")
The most meaningful response to the dissent from Barrett is footnote 9, in full:
The dissent never addresses the actual issue in this case, which is whether the Judiciary has any authority to review visa determinations made by the State Department. Instead, the dissent chooses the rhetorically easier path of charging the Court with endangering the fundamental right to marriage. See post, at 11–14. To be clear: Today’s decision does not remotely call into question any precedent of this Court, including those protecting marriage as a fundamental right. By contrast, the dissent would upend more than a century’s worth of this Court’s precedent regarding the doctrine of consular nonreviewability, not to mention equally longstanding congressional and Executive Branch practice. Ibid.
Assorted thoughts: I think Thomas is opposed to substantive due process altogether; I'm surprised he didn't bring that up. This case is sad; it feels like the people got screwed over. Also, this didn't really belong in the summary above, but at one point Sotomayor included the word "Latinx" in a quote, which was silly.
United States v. Rahimi
8-1. Opinion by Roberts, signed onto by all the justices but Thomas. Sotomayor (joined by Kagan), Gorsuch, Kavanaugh, Barrett, and Jackson all file concurrences; Thomas dissents.
Yes, that's seven people writing, all but Alito and Kagan. The case is about whether prohibiting individuals who are under a restraining order for domestic violence may be prohibited from possessing a firearm. It is especially interesting for the jurisprudence of the various judges and their attitude towards history and originalism.
Rahimi had a restraining order put on him due to domestic violence. (And it's pretty bad: including threatening to shoot his girlfriend.) The restraining order made it illegal to possess a firearm. Rahimi afterwards committed at least six (nonlethal) shootings, and was indicted for possessing a firearm despite being under that restraining order. He here argues that such a restriction is unconstitutional under the second amendment.
Two years ago, Bruen ruled significantly expanded gun rights, striking down New York's "may-issue" carry permitting laws. Moreover, and more significantly for this case, Bruen changed the governing principle from a two-part test to historical arguments. That is, Bruen argued that the proper lens is not by looking at various competing interests, but looking simply at what the right contained in the second amendment involves, and doing so by looking at historic laws around firearms. Likewise, other courts are to subsequently judge gun laws along the same lines: is this in some way infringing upon the second amendment, or would this right be understood as an exception, with the rule of judgment being historical.
In this case, then, the court attempts to rule in accord with Bruen, though with some dispute over how exactly to do so: the author of Bruen, Thomas, dissents against all the other justices, as they, including those who agreed with Bruen, apply it to this case, while most of them present their own arguments giving their views of constitutional analysis and history.
Alright, let's get into it.
After going briefly over the facts of Rahimi, Roberts turns to interpretation of the second amendment. Having explained that the Second Amendment "is not unlimited" (quoting Heller), he explains the bar: constitutional text and history, and, as per Bruen, examination of the historical tradition of firearm regulation. He clarifies that these do not make there to be "a law trapped in amber" (which iconic phrase four of the five concurrences go on to cite). More regulations are permissible. The correct analysis involves looking at "the principles that underpin our regulatory tradition," and so judges are to look whether the law is "relevantly similar," "applying faithfully the balance struck by the founding generation to modern circumstances." Both why and how the regulation burdens the right are central. Finding historical regulation does not require that there be a "historical twin," but it must be analogous. All this was an exposition of Bruen.
Now, in application:
Rahimi challenges the section 922(g)(8) on its face. That is, the defendant must "establish that no set of circumstances exists under which the Act would be valid," so, to defeat Rahimi's challenge, it only must be constitutional in some application. In this case, it is constitutional as applied to Rahimi. Section 922(g)(8)(C)(i) makes possession of a firearm illegal if the restraining order says that he "poses a credible threat to the physical safety" of a protected person.
Roberts turns to look at the history: while there existed firearms regulations in England, by the time of the founding, these were mostly, but not entirely gone. There were still regulations against people threatening others. They were often done through non-firearm specific law, such as prohibitions on fighting, or suits against people who threatened others. But in the time frame that all agree is relevant, there were two "legal regimes" targeting firearms violence: surety laws, and affray laws. Surety laws could be demanded by private citizens, where an individual could be obligated to post a bond, which would be forfeit if they failed to keep the peace. In their application to firearms, someone with reasonable cause to fear could complain to the judge, who could, if he judged cause, summon the accused, and require a bond for up to six months, of someone who went about armed with any "offensive and dangerous weapon". The person could get an exception if he needed them for self-defense or "some other legitimate reason." The second sort of laws were affray laws, which (besides some prohibiting fighting) prohibited outright "riding or going armed, with dangerous or unusual weapons, [to] terrify the good people of the land."
From these, Roberts draws the principle that "When an individual poses a clear threat of physical violence to another, the threatening individual may be disarmed." In this case, Section 922(g(8)(C)(i) applies to those threatening others' physical safety, and unlike the law struck down in Bruen, applies only to demonstrated threats of physical violence, not just anyone. Further, like the surety laws, Section 922(g)(8)'s restriction is temporary, and the penalty is less severe than the affray laws' imprisonment. Roberts goes on to address how the surety laws are different in relation to this instance than in Bruen, where they were not a good analogue to the regulation there struck down.
Roberts addresses Thomas' dissent and the Fifth Circuit, which comes to the opposite conclusion. He says that Thomas accepts the "why", but objects to the "how." Roberts notes that a historical twin is not necessary, and that the fifth circuit did not treat that it was a facial challenge correctly, looking at the law considering cases where it might be more constitutionally questionable, instead of at the most constitutionally sound ones. Roberts also rejects the Government's argument that Rahimi may be stripped of his weapons merely for not being responsible.
Now to Thomas, to give the contrasting view, before we turn to the evaluation from the concurrences. In his opening section, he describes the regulation as fairly broad: not requiring that a person has actually committed a crime of domestic violence, not from a conviction or criminal history, not distinguishing "contested orders from joint order", without due process, as though there is process for the underlying restraining order, the firearms prohibition itself has not process. And the prohibition has sizable penalties.
Thomas gives his own recounting of Bruen, noting that "while a historical law need not be a 'historical twin," it must be 'well established and representative' to serve as a historical analogue." Further, when a regulation addresses a long-existing societal problem, the lack of a similar regulation addressing the matter, or a regulation addressing the problem through "materially differnt means" could indicate unconstitutionality.
Thomas argues that there is no evidence that it is consistent with the country's "historical tradition of firearm regulation," but rather they were addressed through the "materially different" surety laws.
All can agree that the regulation goes after something protected by the Second Amendment's text, as it prohibits possessing or using firearms. So then it is necessary that the government show that it's fine anyway due to the historical tradition, which, Thomas argues, it fails to do. Thomas runs through the various claims of the government that restrict firearms. First, he addresses English precedent, which are not relevant because the Second Amendment originates in resistance to these English laws: because of their use, Englishmen came to want to keep arms, and, at the time of the Glorious Revolution, secured to Protestants a guarantee against disarmament (Speaking from my own Protestant self, obviously the correct conclusion from this is that only Protestants should be allowed to be armed.). And so it would be "passing strange" if the very laws in resistance to which the tradition leading to the second amendment originated were an argument to limit its scope. But even supposing that they were, they aren't the same, because those laws were about rebellion and so forth, not private threats. Second, the government points to "historical commentary referring to the right of 'peaceable' citizens to carry arms," referring mostly to two failed constitutional proposals. But Thomas cites precedent that relying of drafting history is questionable, and points out that both of these were rejected, and in the case of Adams' proposal, caused alarm. And peaceable seems to be interpreted again in relation to rebellion, not private violence. Third, the government cites firearm storage laws that forfeit improperly stored firearms. But Thomas argues that those did not "impose a comparable burden" to the law now in question, as they allowed people to keep other, properly stored firearms and buy new ones. It still leaves the people with some Second Amendment rights, not none. And he rejects the government drawing from that that people who would not be 'responsible' can have firearms removed, comparing it to when, in Bruen, New York argued, from the history of firearms being banned in certain sensitive places, that the entirety of Manhattan is a sensitive place. And so, he concludes, the government failed.
Thomas cites surety laws as something with a common justification, that is, addressing the same issue, but a materially different burden, pointing out that they did not alter an individual's right to keep and bear arms, as he could continue to do all of that once providing a surety. But section 922(g)(8) strips it altogether. (And is sweeping, including even the constituent parts of ammunition. He also notes in a footnote that, though this isn't the issue at hand, he does not expect it would be legitimate under a commerce clause challenge.) This makes them fairly different: surety laws preserve a right and punishing subsequent infringment with a fine, versus stripping of the right, and punishing infringment with a felony, and permanent revocation of a second amendment right.
Thomas then addresses the court. He argues that Bruen, contrary to the court's portrayal, treated the surety laws as fairly different from a ban. Therefore, they do not impose an equivalent burden. Thomas argues that affray laws are different because they are fundamentally public, involving bearing arms in such a way as to "terrify the good people of the land," and so did not cover domestic violence. They also have a non-analogus burden, in that they only prohibit "dangerous and unusual weapons" carried in a "terrifying" manner, in public, whereas 922(g)(8) is far more expansive, banning all Second Amendment-protected activity. Thomas rejoins to Roberts' argument that they are lesser than imprisonment, and so a lesser burden, by saying that that highlights a difference: they penalize past behavior, versus seeking to prevent future behavior. And they occur with far more process, versus merely a hearing.
Thomas argues that the Court's "stich[ing] together" the two is illegitimate, as there must be a single historical law. He cites Bruen, saying that the two regulation must be relevantly similar, and says that what the court does "defeats the purpose of historical inquiry altogether. Since imprisonment, which involves disarming, existed, the government will always satisfy the comparable-birden requirement, so they now only need to find a law with a comparable justification. And so, he argues, laws fining some behavior could, by such stitching, justfiy disarming someone from that behavior, which is a "regulatory blank check" that the Second Amendment is meant to prevent.
He also rejects the government's attempt to make things about whether a citizen is "responsible" and "law-abiding." He also rejects the government's suggested dangerousness test, which is not historically viable as he argued previously. He cites the government's evidence as evidence against approaching it based on "generalized principles," pointing to the colonial disarming of "classes of people" considered threats, which he analogizes to the seizure of firearms from freedmen after the civil war. Citing such examples, he argues that their admittance would allow for the disarming of minority groups now.
Thomas closes by saying that states can still prosecute those who use a firearm to threaten physical violence, but that this law is not consistent with the second amendment.
To summarize briefly, then, Roberts was more in favor of interpreting laws broadly and accepting principles, while Thomas was more narrow and needed closer and more complete analogues.
Let us, then, turn to some of the concurrences, to hear their various opinions. First, Sotomayor's (which Kagan joined). To quote, "Even under Bruen, this is an easy case," agreeing with the court that disarmament of those posing a credible threat is permissible, from the surety and affray laws, taken together, and that disarmament is permissible. She highlights that Roberts referred to finding the "principles" behind the regulatory tradition, and characterizes this as clarifying for courts the way to interpret Bruen: by means of principles. She rejects the dissent's approach, in its "strictest" interpretation, "viewing any basis for distinction as fatal." Sotomayor thinks that the societal problem has materially changed (in that guns are more dangerous now), and that we have changed in what we consider necessary, including, for example, the law being "more likely to protect husbands who abused their spouses than offer some measure of accountability." (I should note, since I don't think I did before, both Roberts and Thomas had cited that surety laws could be granted to women against their spouses in the case of domestic violence.)
With that note of gladness at the less strict way in which Bruen is interpreted, Sotomayor then expresses her displeasure with Bruen's historical approach overall: she would view the Second Amendment as allowing "legislators to take account of the serious problems posed by gun violence," not just looking at the past. She would prefer the means-end scrutiny, which the court "regularly use[s]…in cases involving other constitutional provisions." That is, courts considering the State's interest in preventing gun violence, the effectiveness of the contested law, the degree of burdening the Second Amendment right, and less restrictive alternatives. This was what happened for the second amendment prior to Bruen. In this case, the Government has an interest in keeping firearms from domestic abusers (and she cites that they are more likely to murder). Section 922(g)(8) is tailored specifically to guns, and so should be acceptable at any level of scrutiny.
Jackson writes also to complain about Bruen's history-and-tradition test. She notes Robert's brief comment that some court's have misunderstood, saying that "the blame may lie with us, not with them." Jackson notes that legal standards are not in a vacuum, but must be applied by lower court's. And so, the court should keep in mind the common-law tradition of "promoting clarity and consistency in the application of our precedent." And so, confused courts should be a reason for concern. She cites in a footnote twelve instances of judges in lower courts complaining about it. She contrasts that with "relative harmony" prior to Bruen, though she characterizes Heller, which first granted individual keeping of arms for self-defense, as somewhat disruptive. As Bruen rejects the two-step method that followed in favor of a one-step historical approach, the legislators must find and produce, and courts examine "troves of centuries-old documentation" for evidence. She casts doubt on their qualification to do so. She thinks further that this is a good example of such confusion: that the Fifth circuit had come to the opposite conclusion as SCOTUS did. She characterizes the evaluation of all this as "exceedingly difficult." It depends on what sources, and what level of generality, which have not been clarified, as well as several other questions. (In another footnote, she says that the founders new that new solutions to traditional problems would be needed, and so adopted principles allowing for flexibility.) And so she thinks that there are serious issues with application of these, which makes this a bad standard. (But agrees that the majority, in this case, applied it accurately.)
Now to the three concurrences of the three Trump appointees, which articulate three distinct judicial philosophies.
Kavanaugh writes a 24-page concurrence "to review the proper roles of text, history, and precedent in constitutional interpretation." "The first and most important rule in constitutional interpretation is to heed the text—that is, the actual words of the Constitution—and to interpret that text according to its ordinary meaning as originally understood." "In many important provisions, the Constitution is a document of majestic specificity with strikingly clean prose." He cites over 20 examples. One is the four-year presidential term. In cases where the text is clear, "resort to collateral aids to interpretation is unnecessary and cannot be indulged in." But others are more vague, and not "specifically worded but…couched in general phraseology." This is especially the case for "the broadly worded or vague individual-rights provisions," like the first or second amendments. It has long been recognized that there are exceptions: in the case of the first amendment, there are restrictions in a few limited areas, such as obscenity, defamation, fraud, and incitement. Likewise, the second amendment was recognized by Heller not to be unlimited; there can be restrictions on manner and purpose.
One question, then, is how to interpret such provisions. He notes in a footnote that this can be framed in two ways: as "(1) determining the exceptions to a constitutional right or (2) determining the affirmative scope or contours of that constitutional right." They are ultimately the same question, as they look at whether the constitutional right permits the law, but he prefers here to refer to them as exceptions, to highlight what the baseline is: protection of the right. Aside from precedent, there are two main ways to decide: history, or policy. History looks at things before and after ratification to help discern the meaning and principles embodied in that text. Policy depends on the philosophy or policy opinions of the judge. History, not policy, is the proper guide. History has long been the thing to turn to for the court. It supplies evidence of the original meaning. It is far less subjective. It better befits the neutral judge—an umpire, not someone who fabricates constitutional meaning. So without precedent, if there is ambiguity in the constitutional text, history is the proper guide.
Pre-ratification history examines the intentions and understandings of the framers and ratifiers of the constitution and amendments. These intentions and understandings may serve to give "strong evidence of meaning," though it does not determine it. This includes history in the colonial era, "including pre-ratification laws and practices." For example, constitutional provisions match the articles of confederation, or state constitutional provisions, in which case the history of how those were understood can inform what they meant at the time of the passage of the constitution. They can also show what things do not mean, such as in the ways in which the Constitution remedies the defects of the articles of confederation. American objections to abuses of British laws and rule can inform the interpretation of the Constitution and bill of rights. Hence, English deprivations of rights in some circumstances are not good evidence that the same is true under American constitutional provisions, as the American instances were often in response to them, to prevent precisely those abuses. (Kavanaugh footnotes that English law also can provide background for provisions, as American law is derived from it, but we shouldn't assume that it's imported wholesale.) He cites also the Equal Protection Clause of the 14th amendment should be understood to prevent racial discrimination, not to incorporate it.
Post-ratification history is also relevant. When the text is vague, and pre-ratification history is "elusive or inconclusive," it becomes important. There is little to turn to otherwise, if you would avoid policy. National and state governments interpreted and applied, and these often "reflected and reinforced common understandings of the Constitution's authorizations and limitations." They can "be probative" of meaning, and the collective understanding "provide good guidance." (He footnotes that there are still questions about how to apply this, such as how widespread the historical practice should be.) "the Framers themselves intended that post-ratifcation history would shed light on the meaning of vague constitutional text." And Kavanaugh (which, I suppose is here close to an application of the very principle under discussion) points to, in McCulloch v. Maryland, where they judge a national bank permissible, they judge it could "scarcely be considered as an open question," due to the recognition of the legislatures, and exposition of the constitution by "legislative acts." Kavanaugh also cites Scalia to support his position here, saying that "traditions"—which is the term Scalia often used for it—are "paramount." And post-ratification has often been employed. (For which he cites thirty examples.) He footnotes also that history is also used for unenumerated rights under the due process clause of privileges or immunities clause, but this is "180-degrees different." There, there is no text expressly protecting it, but they are protected because the Fourteenth Amendment "specially protects those fundamental rights and liberties which are, objectively, deeply rooted in this Nation's history and tradition." (Citing Washington v. Glucksberg)
Third, Kavanaugh turns to precedent, which is "fundamental to day-to-day constitutaion decisionmaking" at both the Supreme court and every other court. The "judicial power" of article III incorporates stare decisis. "Courts must respect precedent," but it may also be appropriately overturned "on occasion." And so often there is reference to that precedent. But text and history, even in those situations matter: they determine how broadly or narrowly to read it, whether to extend, limit, or narrow a precedent, or, somewhat infrequently, when overruling a precedent, to consider how it fits with the Constitution's text and history. The text and history function as a "gravitational pull" on the interpretation of precedent. But precedent is still the first place to turn.
Kavanaugh turns to a discussion of policy: some would "uphold a law if it is a good idea; strike it down if it is not." This is not said explicitly, but is fundamentally what is happening in the balancing approach known as means-end scrutiny, or various other names. This is different from the historical methodology, and did not exist before the 1950s, and were adopted by accident, not from considered judgment. It has only been applied in some specific areas. He does not support overruling it, but does not consider it the ordinary interpretation, and opposes its expansion. (He doesn't mention it, but compare that Sotomayor had characterized it as the default.) He considers it "highly subjective," and they act more like legislators, than judges who "say what the law is." And it is ill-defined, with differences in whether there is a presumption of deference to the legislature, or to the right in question. (Though he does not mention this, recall that Jackson was concerned with applicability and consistency from lower courts.) And there is a danger of it being due to their own predilections. The historical approach is not perfect, but it is the best available.
And then he notes that interpretation is still developing for the second amendment, and that the cases in which it has—Heller, McDonald, Bruen, and now Rahimi use, in their approach, the same longstanding approach as to the interpretation of vague text in the constitution.
Upon reading this, I like Kavanaugh significantly more than I did before, because I understand him better.
Barrett writes on originalism. She points out that the Second Amendment involved a pre-existing right, and so pre-existing limits are part and parcel of it, defining the scope of "the right to bear arms" as originally understood, and agrees that looking to the historical tradition of firearm, as Bruen said, is the proper way to identify those limits. Barrett identifies the basic premise of originalism as that the meaning of the Constitution is fixed, and, in most circumstances, legally authoritative. Upon being ratified, the constitutional text is law, and "remains law until lawfully altered." The history that matters most is the history prior to its ratification, as that "illuminates the meaning of the enacted law." History postdating ratification "does not serve that function." It can still be useful, in that it can "reinforce our understanding of the Constitution's original meaning," "liquidate ambiguous constitutional provisions" ("liquidate" here meaning "make clear"), "provide persuasive evidence of original meaning", and, "if stare decisis applies, control the outcome." (Barrett here cites her concurrence in part from Vidal v. Elster the week prior—that was the trademark one, where she disagreed with the majority on the reasons why it should be allowed. Part III-B of her opinion there is the most relevant.) "Generally speaking, the use of postenactment history requires some justification other than originalism simpliciter." Barrett asserts that in her concurrence in Bruen formerly, she did wonder what time period was relevant for determining meaning, but emphasizes that she definitively does not think that "tradition, standing alone is dispositive." "Evidence of tradition unmoored from original meaning is not binding law." The dispositive sort of history plays two roles: showing how contemporaries understood the text, and "determining the scope of the pre-existing right that the people enshrined in our fundamental law. This is the way that the court uses history in Rahimi. (Barrett footnotes that original meaning controls, expectations about its application do not. Contemporary governments could be mistaken about their own rule, or might not have "fully and faithfully" implemented it. So it helps, but requires care. "Particular gun regulations—even if from the ratification era—do not themselves have the status of constitutional law.") She calls it "original contours" history: looking at history to find the contours.
Courts have wondered how general to be in their use of history. Are historical twins, or at least a cousin, needed? Or do they yield principles marking borders of the right? Barrett notes that "many courts, including the Fifth Circuit have understood Bruen to require the former, narrower approach." But she cites Bruen, where it says that "analogical reasoning" is not a "regulatory straightjacket." Challenged regulations do not need to be "an updated model of a historical counterpart" to be "consistent with historical limits." Requiring "overly specific analogues" "forces 21st-century regulations to follow late-18th-century policy choices, giving us 'a law trapped in amber,'" and assumes that they used all their power to regulate, a "use it or lose it" approach. Rather, "analogical reasoning" has regulations "reveal a principle, not a mold." That shouldn't be at a level that it "waters down he right." But it's an ordinary part of legal reasoning to draw principle from precedent. Sometimes there will be disagreement over how broad exactly. But in this case, there is the appropriate level of generality.
Now, finally, to Gorsuch. He too clarifies what exactly he sees it as necessary in the approach here, though he does not articulate as explicitly as Kavanaugh and Barrett that that is what he is doing, and articulates the philosophy more through the lens of the case at hand.
He opens by pointing out the sort of challenge: a facial one, where there must be "no set of circumstances" where it can be applied without violating the amendment. The Constitution, is undoubtedly relevant, in the second amendment. Which amendment's contours are dictated by "text and history." And so, the question in this case (as all agree that there's no textual reason why it would not apply) is about history: is it consistent with historic regulations. It does not need to be a "dead ringer" for a historical analogue, but it must show that "imposes a comparable burden on the right of armed self-defense to that imposed by a historically recognized regulation," and that its burden is "comparably justified." These are needed because the Second Amendment "codified a pre-existing right," which then carries the same scope as when it was adopted. He notes that they would have understood that there were risks, but also that it was "vital to the preservation of life and liberty." And the court does not have the "authority to question that judgment." "As judges charged with respecting the people's directions in the Constitution—directions that are 'trapped in amber'—[their] only lawful role is to apply them in the cases that come before [them]." (Note the different use of "trapped in amber" affirming that that is, actually, the case of the people's decisions in the Constitution, as opposed to Robert's saying the opposite in legal choices beyond the Constitution's.) Any changes to the Constitution are to be made by the American people. And so it is usual to cite history (citing Kavanaugh's concurrence), and this should be done with care (citing a footnote of Barrett's concurrence). He compares the right of a defendant to confront accusers, as exposited in Crawford v. Washington—there too, to justify an exception they must point to a close historical analogue. "We have expressly rejected arguments that courts should proceed differently, such as by trying to glean from historic exceptions overarching policies, purposes or values to guide them in future cases. We have rejected those paths because the Constitution enshrines the people's choice to achieve certain policies, purposes, and values 'through very specific means': the right of confrontation as originally understood at the time of the founding." Courts may not extrapolate to values behind the right, and "enforce its guarantees only to the extent they serve (in the courts' views) those underlying values." That risks letting judges get rid of the right. Likewise here, they must be careful in historic comparisons.
Rahimi's challenge, Gorsuch judges, fails because surety laws and restrictions on "going armed" were understood from the start to all the government to "disarm an individual temporarily after a judicial determination that he likely would threaten or has threatened another with a weapon." And the statute does the same for the same reasons: disarms, only after notice and hearing, for physical safety, and onlyt for so long as the order is in effect. So, at least in some applications, it does not diminish any aspect of the Second Amendment right. He recognizes that Thomas disagrees whether it is analogous to practices outside the second amendment's scope, they agree that that is only proper question for the court. At least asking the question keeps justices where they in the station they ought to be, following the will of the people; not their own. Turning to the original meaning "offers surer footing" than any other method. "Come to this Court with arguments from text and history, and we are bound to reason through them as best we can…Allow judges to reign unbounded by those materials, or permit them to extrapolate their own broad new principles from those sources, and no one can have any idea how they might rule." Adhere to the original meaning. Considering the lower courts before Bruen, with their "two-step test that quickly devolved into an interest-balancing inquiry." He cites some as saying that it let judges set policy, as a black box. In one circuit, the government won 50-0, undefeated. "Perhaps judges' jobs would be easier if they could simply strike the policy balance they prefer. And a principle that the government always wins surely would be simple for judges to implement. But either approach would let judges stray far from the Constitution's promise." (I assume that is in part a shot at Jackson.)
Gorsuch also clarifies that the ruling is only that there exist circumstances where it is legitimate, because of the facial challenge: they do not decide whether people can be disarmed without a judicial finding of a credible threat. They do not decide whether permanent disarmament is permissible. They do not determine whether it may be used against someone who uses a firearm in self-defense. They do not approve laws allowing firearms to be denied to those deemed "not responsible" (noting Thomas' comment that not a single member adopts that theory.) Article 3 requires judgment only of cases; and those are not of this case.
Alright, that's all, finally. So, thoughts: First, a little on judicial philosophy. There appear to be several relevant questions:
Is Bruen's originalist history better than a means-end analysis?
Yes: Thomas, Gorsuch, Alito, Barrett, Kavanaugh, Roberts
No: Sotomayor, Kagan, Jackson
The originalist justices think that the job is, essentially, to follow faithfully what the Constitution set down, in its original meaning. The non-originalist justices think that a significant factor in interpretation of its meaning should be contemporary needs.
Should judges try to draw out principles? Or instead look purely for historical matches?
Yes: Barrett, Sotomayor, Kagan, Kavanaugh, Jackson, Roberts
No: Gorsuch, Thomas
Roberts manages to say little enough on this to get Gorsuch to sign on, on the one hand, but Thomas, Sotomayor, and Jackson all read his reference to principles as significant. I think some of this question might be to what extent one sees the right as existing simply in the set of regulations and lack of regulations applicable, as opposed to whether the regulations and lack of regulations are instead expressive of an underlying right. Thomas and Gorsuch seem to think something pretty close to the former, while most of the others think something close to the latter. I'm not certain of that, but it seems right.
Judging by the opinion in Vidal and elsewhere, Barrett is significantly less comfortable with history as conclusive evidence in itself for the constitutionality of a thing, though she is certainly in favor of history. But for her, history, with few exceptions, must be in order to exposit meaning; not proof in its own right. I wonder whether we're going to see a long string of dissents or concurrences in part after the style of Vidal.
She would disagree with at least some of what Kavanaugh writes concerning post-ratification history. Gorsuch's cites Kavanaugh's concurrence on the use of history, including post-ratification. But I don't know that that indicates that he signs on. This gave me a sense of Kavanaugh being a good bit more principled, rather than just pragmatic, than I ever had a sense of before.
Additionally (now that I'm looking there again), Kavanaugh's concurrence in Vidal, which Roberts joins, seems mildly to support looking for principles in things, instead of plain application of history.
Gorsuch's disagreement with Thomas here is fairly narrow. His vision of what an analogue is is slightly broader, but I don't see much else of a divergence. It's narrower than that found by many of the other justices.
Overall, this case gave me a much, much better sense of how the justices approach these things. Which philosophy do I like best? I think probably Barrett's, but I also get Gorsuch's concern that turning to principles leads to reduction of rights. I'm sad we didn't get to see Alito, and that Roberts was only one that he had to get people to agree to, instead of just purely whatever he thought. But I'll happily take a much better view of the way six of the justices approach issues.
More generally, it would not surprise me if we see more challenges of this statute. I'm pretty sure Gorsuch would approve of striking it down in other cases. It is less clear to me what the other justices would do. I am glad for the court's reputation that it went this way. People would not like the headline "Supreme Court rules domestic abusers entitled to violent weaponry" or some such.
Also, wow, all these took quite a while to read through and write up. Rahimi was worth my figuring it out in more detail, though.
There are reasons that people do not think that that commandment necessarily applies today. Essentially, when you look at the laws of the Old Testament, it's traditional (and seems pretty accurate) to divide them into
-
Moral laws, that is, things that you morally should just do (like, "thou shalt not murder"). These are true for everyone, everywhere, always, Israelite or not.
-
Ceremonial laws, laws fulfilling some religious purpose, directed towards Israel as a church, so to speak. The sacrifices or the dietary laws would be considered examples of these. These wouldn't apply to everyone in the world anyway, but Christians don't have to do them anymore because Christ fulfilled them or something (I don't fully grasp the theology of what's going on here), and you see as much said in the new testament (in Galatians, Acts, Hebrews, and others). We do sort of have some analogous things, like the sacraments, but it's a lot less extensive than what applied to the Jewish people before Christ.
-
Judicial laws, laws for Israel as a state, like punishments and so forth. But we don't live under the government of ancient Israel. We definitely still have things like these, but not necessarily the same ones, instead having whatever the government instituted. And different times can call for different laws, because the circumstances can change. I don't see any laws concerning the internet in there, and the law about having a fence on the roof of your house isn't so good when it's no longer normal to walk on roofs of houses.
So we have to follow moral laws, but not Israel's ceremonial or judicial laws at this point, those have replacements. Not committing homosexual acts would presumably be moral (given that new testament passages still speak against it). Punishing homosexual acts with death would definitely be a judicial law, and we don't follow ancient Israel's but the USA's judicial laws (or whatever other country). Now, of course, there isn't a problem with Israel's laws, God made them, and so punishing gay sex with death is still a legitimate legal system (well, probably, unless you wanted to argue that the severity was for ceremonial reasons to some extent), but not necessarily the only legitimate one, or the best one for the people of America.
So I'm not in principle opposed to having a death penalty for gay sex, but I don't think we have any sort of need to do that either, if that makes sense, and that's not due to thinking that it's outdated or something.
Edit: To be clear, I'm not Mormon, I don't know how well this matches for them.
Felagund
10mo ago
It's the generic (and often unconscious) response to people being uncivilized on the left:
-
We ought to empathize with them, and take seriously whatever motivated them to such actions.
-
We can't put expect anything of them, because they're uncivilized.
-
We can't expect to influence them, because they're uncivilized. (And is it even right to try to sway them from it, given the justifications that they have for it?)
-
Instead, responsibility should be loaded upon those who react too harshly, because they should have known better. And we should feel bad for the victims of the response.
This is precisely the same path that leads people to adopt soft-on-crime prosecutors, and generally punish those who retaliate against the lawless. It happens often when it's easier or involves less unpleasantness for the state to punish those who are otherwise productive, than those who are wild.
This is the default thought pattern that happens when sympathy and responsibility get loaded onto different parties in some conflict. It clearly correlates with seeing things as oppressor (responsible) and oppressed (sympathetic), which is tied to why it's more common on the left, I think.
See Daniel Penny, see the UK riots (and speech arrests), see opinions on cops (when unjustified), etc.
I imagine things will get a lot better for you, if the 2024 election goes to Trump, and worse if it goes to Harris.
Trump's brought it up several times. But no one believes him. You're right that this could probably be pressed in a more serious manner, but merely having Trump repeat it does not work.
See also Montana's failed referendum to protect those children.
Felagund
1yr ago
This week's SCOTUS:
Wednesday, there were two opinions, and a leak of a third.
Murthy v. Missouri
6-3, by Barrett, dissent from Alito, joined by Gorsuch and Thomas.
I accidently deleted this, and it's decided on standing, so I won't bother to write it up at length.
The case is about the first amendment, and government pressuring social media to censor. Earlier this term was NRA v. Vullo, which was decided against the government pressuring organizations.
Barrett argues that they don't really have the standing needed to seek an injunction. Most of them didn't do a good enough job showing that their censorship was a result of the government, and they didn't do a good enough job to show that they are in need of an injunction to prevent likely future continuing censorship due to subsequent government pressure. (Especially because several of these related to COVID, and that's changed. Some underwent more censorship, but that wasn't necessarily from more government action.)
Alito presents a thorough narrative, and argues that they meet the standing requirements (not quite sure he manages that). He makes some connections the plaintiffs didn't, which Barrett thinks he shouldn't have, as it's not the job of judges to look through more than 20000 pages of documents for themselves; it's the job of the parties to make the case to the judges. He argues that the standard shouldn't be excessively high to show standing, as then the government can just maintain a touch of plausible deniability and do all the pressuring it likes.
Snyder v. United States
6-3, conservatives vs liberals. Opinion by Kavanaugh, concurrence by Gorsuch, dissent by Jackson.
The case is about gifts to officials.
Kavanaugh introduces the difference between bribes and gratuities: bribes are intended to influence action as a quid pro quo, gratuities are gifts given afterword for official conduct. The question is whether section 666, a statutes concerning state and local government officials, prohibits bribes and gratuities, or only bribes, and was taken because circuit courts disagreed. The text is
corruptly solicits or demands for the benefit of any person, or accepts or agrees to accept, anything of value from any person, intending to be influenced or rewarded in connection with any business, transaction, or series of transactions of such organization, government, or agency involving any thing of value of $5000 or more.
The key words are "corruptly," and "influenced or rewarded."
Kavanaugh makes six arguments:
- The text. Kavanaugh argues that the text was modeled after a federal bribes statute, and doesn't look like the gratuities statute right next to it. One particular feature is that this has a mens rea (that is, criminal intent) requirement, while the gratuities statue has no such requirement.
- Statutory history. It was revised; Kavanaugh argues that that was an elimination of gratuities language from an earlier version of the text.
- Statutory structure. Nowhere else includes both bribes and gratuities in a single statute. (Except maybe one other passage, section 215, with identical language, which the court has not interpreted to date)
- Statutory punishments. This statute sets a max of 10 years. For the federal bribery statute, the max is 15 years. For the federal gratuity statute, the maximum is 2 years. It would be weird for state and local officials to have five times the maximum as federal officials.
- Federalism. State and local entities regulate gratuities already; the presumption should generally be that Congress would not lightly override that.
- Fair notice: the government hasn't exactly set clear lines, so it's hard for anyone to know.
Kavanaugh's response to the dissent: "reward" is ambiguous. It can mean rewards promised before the fact (and is used as such in some other bribery statutes), or rewards with no such promise (gratuities). But here, because of the word "corruptly", it must be talking about before the fact. He argues that Congress added "rewarded" in addition to "influenced" to make it impossible for officials to argue that they would have done whatever things anyway, so it isn't technically covered, as they try to get away with being bribed.
Note also that throughout, Kavanaugh chooses small gratuities, like gift cards and meals, as his examples.
Gorsuch concurs that this is an instance of "lenity." The statutes leaves some reasonably doubt, so you should lean in favor of the "presumptively free individual." He sees that as what's going on behind the reference to "fair notice." And he is "pleased to join."
Jackson dissents. She says that they should begin and end with the text. She reads "influenced" as capturing quid pro quos, and therefore, bribes. "Rewarded" is intended to capture corrupt officials acting without an explicit quid pro quo. "Reward," as ordinarily read, would not require that there be a beforehand agreement. Jackson points out that there are other statutes which use "reward" to refer to gratuities. And she argues that mentions of "reward" in the bribery statutes that the majority refers to, makes it explicit that it is attached to an agreement, whereas that is not seen here.
Jackson argues that statutory history makes the case for the majority worse. She agrees that it traces to section 201. But she points out that: originally, it is agreed that section 666 refers to both bribes and gratuities, and that it then also had the 10-year maximum. Then she argues that the majority is wrong to see the subsequent changes as changing what it covers, as it was part of a package of "technical and minor" changes. It was here that Congress changed the language to get what is under dispute, going from "for or because of" to "intending to be influenced or rewarded." But Jackson does not read this as based off of section 201(b), but based on section 215 (which the majority had dismissed as as of yet uninterpreted). she cites also a House Report characterizing it as being meant to track section 215, not 201 as the majority claims. And a house report had spoken of 215 as including gratuities (in that context, referring to bank officials).
Jackson then turns to whether all gratuities are covered, or which exactly; she says that they do not need to reach that question. Looking at Snyder's case, it seems pretty bad. He had several instances of bidding for contracts to buy garbage trucks, where the specifications were tailored to help one of the bidders. In fact, one of the times, that bidding process happened only after he tried to have the vehicle bought directly before being told that wasn't how things were done. Then he went to the dealership and asked for $15000, and was given $13000, which he subsequently claimed was due to consulting. Employees testified that said consulting never existed. He was charged under section 666. (Jackson here notes that it is odd that the decision was reversed (that is, ruled the lower court was wrong) instead of vacated and remanded (that is, sent back to lower courts for further judgment) is odd, as arguably there's enough circumstantial evidence to conclude bribery, not just gratuities, likely existed.)
Jackson argues that section 666 is not talking about the things that the majority uses as examples. It applies to officials in entities getting at least 10000 in government benefits. It must be connected to business or transactions, of value at least $5000. It does not apply to things like fees or wages or other ordinary compensation, nor to reimbursements or payments for expenses "in the usual course of business." And it specifies that it must be done "corruptly." She would not read that narrowly as referring solely to quid pro quos. She argues that "corruptly," combined with the reference to intention involves knowledge of wrongfulness, so ambiguity in cases benefits the official. This makes it difficult for prosecutors to meet the burden of proof in cases where it is, in fact, innocent. She argues also that in the cases that have happened, the track record seems to be actually bad examples, so the built-in limitations work. She reads the real motivation for the majority's decision as Kavanaugh's fifth reason: that he thinks it better to leave it to state and local decisions.
Frankly, Jackson's responses here seemed pretty devastating; I have no idea how the majority acquired six people. I'm not used to siding with the dissent when that dissent is the three liberals and only them. It's also not the best look for the court when people are complaining about corruption, even when those complaints are done with extreme prejudice and heavy exaggeration, as it's easy to spin the case in the news as allowing bribery.
The supreme court also accidentally leaked Moyle v. United States, which was released Thursday.
Moyle v. United States
Per curiam. The case was dismissed as improvidently granted (DIG); the courts stays vacated. We see the court's 3-3-3 structure, as Kagan concurs, joined by Sotomayor and Jackson (Jackson in part, she also writes her own opinion); Barrett concurs joined by Kavanaugh and Roberts; and Alito dissents, joined by Thomas and Gorsuch (Gorsuch in part). It was 5-4 on whether to grant certiorari
Moyle v. Unite States was asking about the relation between the Emergency Medical Treatment and Labor act requiring medicare-funded hospitals to provide emergency aid, and an Idaho abortion ban: what happens when an abortion is needed to prevent serious health harms.
The district court had issued a preliminary injunction in favor of the government, as it expected the government would succeed. Idaho asked for a stay, the ninth circuit said no, and SCOTUS granted Idaho the stay and granted "certiorari before judgment."
Kagan argues that federal law would embrace such cases, as there are health-threatening but not life-threatening emergencies that require an abortion. She does not think Idaho is likely to succeed on the merits of its case that EMTALA does not require emergency treatments violating state law. And so, the preliminary injunction mandating such abortions should remain.
She responds to Alito's dissent (this is the only part that Jackson joins), by saying that abortion is needed in some cases to "stabilize" the patient, and so EMTALA does at times require it. She doesn't think the statute's applying also to requiring emergency care for unborn children changes the matter.
Barrett, joined by Roberts and Kavanaugh, think that "the shape of these cases has substantially shifted since we granted certeriorari." She goes through history: the U.S. has sued Idaho to enjoin its abortion ban "to the extent it conflicts with EMTALA." The District court granted a preliminary injunction because (1) "The act prohibits the termination of ectopic pregnancies" (2) The woman's death must be objectively imminent or certain before they may perform an abortion, per Idaho, and (3) "'necessary to prevent death' is only an affirmative defense." But since then, the Idaho supreme court, ruled that the act doesn't require objectively certain, and ruled that "treating an ectopic pregnancy, by removing the fetus" does not count as an abortion under the act. (Side note, as I'm in pro-life circles enough to guess as to what the ruling there was saying: I assume that that is because it removing the fetus would be distinct from killing it directly, with the death merely being an unfortunate side effect instead of a means. And so it's not an abortion.) Idaho since amended the act to exclude removal of ectopic pregnancies, or removal of already dead children, and changed the affirmative defense to an exception. Barrett's now no longer convinced that they need early resolution. They still disagree whether abortions are needed as stabilizing care, and whether EMTALA can preempt state law. But the law's been changed twice, and the US government has disavowed what Idaho claimed the injunction would do: make its law unenforceable, by including jeopardy to mental health as required by EMTALA, and threatening religious providers, by ignoring conscience. But the government's clarified that it isn't needed for mental health, that it can require delivery, rather than abortion, if the kid's already viable, and that conscience protections still apply. Meanwhile, from Idaho's side, they've argued that it's okay if abortions happen under certain emergencies, even if the the threat to the mother's life is not imminent. "A grant of certiorari before judgment presumes that further proceedings below are unnecessary to the court's resolution." But a bunch of things have changed. There's also a not-before-discussed "difficult and consequential argument…about whether Congress, in reliance on the Spending Clause" can obligate recipients of federal funds to violate state criminal law, and they should let lower courts look at that first. And so they should let them happen below. Barrett agrees to vacate the stay, as the arguments that Idaho would be irreparably injured mostly go away. There's still relevant differences between the two that need to be worked out but most of the factors that made it a serious issue demanding quick action have gone away. Idaho's still mostly able to enforce it's law.
Jackson concurs in part and dissents in part. She writes argues that "this months-long catastrophe" (the stay up to this point) was unnecessary. She argues that it's plain that EMTALA requires abortions, and that the state law must plainly give way. She agrees on lifting the stay, but doesn't think the court should have dismissed the case as improvidently granted. She thinks it's still certainly necessary to address the supremacy clause question in relation to EMTALA and state law, as various courts have passed abortion requirements. Meanwhile, there's a plain contradiction, in that one prohibits except in case of threat of death; the other requires them in cases of threat to health. The fundamental matter remains the same. She's a little rude to Barrett (characterizing it as convenient). It will plainly still continue to conflict in some cases. Idaho's representations to the court are not official and definitive interpretations of Idaho law. Jackson thinks that they should stick to what they have done. They've heard the arguments, and so forth. Jackson also thinks it's bad that the court hasn't yet rejected the argument about the "farfetched" theories about the spending clause, leavings states, for now at least, "nullifying" federal law. She's opposed to letting the harm continue.
Alito also dissents, joined by Thomas and Gorsuch in part. Alito points out that EMTALA requires protecting unborn children. And he argues that "conditions attached to the receipt of federal funds must be unambiguous," according to previous cases on the spending clause. But here, the statute is unclear. The court previously thought Idaho was likely to succeed. "This about-face is baffling. Nothing legally relevant has occurred since January 5." They've received briefs, and heard arguments, everything that's been needed has been heard; it's ready to be decided, nothing new will happen. "The Court has simply lost the will."
Alito argues that the text of EMTALA requires treating unborn children. They must be protected—both in the case of treatment, and in the case of transferring to another hospital. He argues further that the government's argument that the provision requiring treatment only with the patient's consent lets the patient decide the mode of treatment is not correct, and cannot be used to demand illegal treatment (and so regulation on experimental treatment still holds). So EMTALA does not require abortions. He argues further that the context of its enactment shows that they did not contemplate requiring abortion, and was supported by the same Hyde, by the same Congress, and the same President that pushed the Hyde Amendment prohibiting federal funds supporting abortions (except in limited circumstances) and promised not to support abortions. He rejects the government's citations of some cases, and its reference to the affordable care act in EMTALA's interpretation.
He also argues under the spending clause: parties may take federal funds, agreeing to comply with federally-imposed conditions. Those accepting must have "voluntarily and knowingly" have accepted the conditions for the conditions to have been enforced, like a contract. And so the conditions must be unambiguous, and recipients must legitimately have a choice. EMTALA is not unambiguous, as he argued earlier that it does not require abortion. Further, Congress is usually expected to make its intention clear if it intends to "pre-empt the historic powers of the States." He argues further that this binds Idaho, whereas Idaho never agreed to be bound by EMTALA. He also presents Idaho's arguments that EMTALA cannot preempt the State's abortion rules because Idaho is not a party to the agreement between the federal government and hospitals that take medicare. Alito also argues that EMTALA says that it is not to be read as giving federal officials control over how medical services are provided in states. So it shows that they did not intend to have the federal government intrude into state healthcare regulation. He thinks the government's arguments do not suffice against the spending clause argument. And so they should reject the government. He rejects the arguments of the liberals, saying that it requires stabilization of any threat to an unborn child. And that it fails to take into account the spending clause. [Side note: would this make all abortions illegal? No one argues this, so I must be missing something.]
Alito then turns to address the Court. He argues that the Government should lose, and so the stay should remain. He argues that it's been established that failure to enforce its laws is a form of irreparable harm, and Idaho is undergoing that. The injunction will lead to more abortions. The laws continue to conflict, so they should judge the case. The parties agree that it matters whether the law is enforced. He affirms that there is a conflict: in the cases of abortions that would be needed for health, but not life.
Alito argues that the government still thinks that health includes mental health, and so EMTALA could, under their interpretation, require an abortion. Meanwhile, many medical organizations argue that abortion is often needed for mental health. And so the stay is a serious error.
I'm really not sure what to make of this. Evidently the deciding votes were the block of three moderate justices, but I don't get what caused them to change their mind.
I still need to get to three more Thursday opinions, and by the time I do that, there'll be some Friday ones too. SEC v. Jarkesy seems like it will matter.
Felagund
2yr ago
I think the setting may be more important to Lord of the Rings than it is to Romeo and Juliet, maybe?
Pennsylvania's Commonwealth court just ruled that ballots that are in Allegheny or Philadelphia must be counted, even if they are undated or misdated. This only applies to ballots submitted on time, purportedly. The takes that I've generally seen online are that this is evidence that they have plans for fraud. The court argued this, though, on the grounds that dates are unnecessary, as the counties have other means of telling when votes were submitted (I think they scan a barcode when received). But what's certainly a problem is that this decision was written to apply only to Allegheny (where Pittsburgh is) and Philadelphia counties, the two counties that contribute the largest margin to the democrats. Given that they estimate that around 75% of mail-in ballots are for democrats in Pennsylvania, the most mail-in ballots are from suburban and urban voters, and that around 10000 ballots were not counted for that in 2022, this could have the effect of aiding the democrats by 5000 votes or so. Thankfully, this is only 0.07% of the vote, so not all that likely to be decisive.
The other interesting feature of this case is that the court ignored non-severability provisions, which said that if any provision of the act, or its application to any person or circumstance, was held invalid, the whole act is void. They did so merely by arguing for a presumption of severability in Pennsylvania laws, despite the explicit language to the contrary in this case. Voiding the act would have thrown out the entire mail-ballot system. Them striking down part of it, but not the whole thing, against the explicit text, seems the most sophistic part of the whole thing, to me.
This can still be appealed to the Supreme Court of Pennsylvania. It's blue, though, so I'm not expecting changes. Thankfully, it doesn't seem like, barring fraud, the effect will be too large.
Edit: Make sure you read the comments of @Rov_Scam, where he argues that I'm not representing this accurately or completely—I don't want to be misleading.
Felagund
10mo ago
Social security's insolvent. There will be automatic cuts in a decade. Expanding lifespans and falling birthrates will make the situation worse. There's no way the program survives long enough for me to get a penny out of it.
Accordingly, your demand that you benefit is actually just saying that you don't want to be the one stuck with the bill—that's for other schmucks. Keep forcing people into the Ponzi, to make sure it's solvent long enough to fulfill the promises it made to you, specifically.
And this despite that it doesn't really promise you any direct reward! There's no accrued payout that's sitting for you on a leger somewhere. That's just the story they tell you to make you think it's reasonable.
It's almost a quarter of our yearly spending.
No. Social security needs to go. At the very least, we should be means-testing. It's unfortunate that there's no political will to touch it.
The broad scale picture of two enemies at war flows fairly naturally from our election system, as it forces there to be two parties. As it exists specifically, it's due to differences in values. The right is a mixture of pro-religion and pro-liberalism forces (though the latter is waning post-Trump) while the left's predominant concern is about fairness and oppression.
I second what @07mk said about it being taught in schools—one of the big moral things that they push in schools is that slavery, racism, etc. are bad. And justifiably so. But that lends itself to the support of the left, whereas the right's values are less likely to be taught. Social media of course contributes, in the further emphases on flaws, and in the spreading of ideas within each other and the formation of a culture.
The left doesn't see things as them having power and oppressing the right. They see it rather as them, with their institutions, trying to combat a vast societal undercurrent of evil. Remember, every disparity is a sign of oppression, of failure—the wealth of the wealthy, racial gaps, everything. They are people struggling against the racism and oppression everywhere. Everyone wants to be the underdog.
And they see the right as legitimately evil. To side with the slavers over the slaves! What do the billionaires need? Why are you supporting the white people, who have perpetrated centuries of harm upon others, and (as is evident by the disparities) are still profiting? Would you treat half the world as lesser, merely because they are female, as if they needed to depend on men? Why would you let our pristine world go to waste, in the pursuit of selfish profit? They see society as a bundle of flaws and problems, and take the good it does for granted.
You point out that the left is punching down. Yes, they do. But they see themselves as attacking human scum.
To answer your three questions directly:
-
It's kind of a mix. The red tribe does genuinely have contempt for the blue tribe, it's not merely defensive.
-
The red tribe hates the blue tribe because it sees evil. A world of injustice, where people (they could be the victims) are mistreated because they are white, where the institutions that our society runs upon are being subverted or torn down, where the children are slaughtered by the millions. A place of debauchery, where people promote the ugly and disordered everywhere, from piercings to art to the disordered gender relations that LGBT consists in to the assault on the justice system. People lose jobs for having views like them. Christianity is attacked. Why would anyone prefer the ugly over the beautiful, or disarray to health?
-
As I said above, the left hates the right, because it promotes oppression and injustice. Why would you side with those perpetrating harm, with the selfish, rather the with the victims?
Today's SCOTUS opinions
I'd like to post a little about these as they come out over the next few weeks. One of you said you like themotte's legal takes not too long ago, so I'll give my utterly uninformed ones. If there are new opinions out, and I haven't made a thread, by all means, make one.
Cantero v. Bank of America, N.A.
Written by Kavanaugh, 9-0.
This case is rather obscure. It deals with the question of a law in New York, regulating banks. There are two types of banks, national and state banks. The question is whether the statutes applying to federal banks preempt those applying to state banks. Everyone agrees that they sometimes do. In this case, the court argues that the Second Circuit should have applied a different standard than they did (they should have applied "nuanced comparative analysis" instead of a "categorical test," following the wrong set of precedents), but does not give any opinion on how that should be decided in this case, just that it should be looked at again by the lower court with a different standard.
I know, I know, exciting start.
Thornell v. Jones
6-3. Alito writes for the majority, which the conservatives join. Sotomayor and Jackson each write dissents, of which Kagan joins the former.
In 1992, Jones committed two horrific murders: he beat his acquaintance Robert Weaver, Weaver's grandmother, and Weaver's seven-year-old daughter to death in order to take Weaver's $2000 gun collection.
Under Arizona law, this was weighed, with the aggravating factors (committing multiple murders in the offence, motivated by money, heinousness, and a young child), and the mitigating factors (Jones had underwent child abuse, began abusing drugs young, suffered brain damage, and received psychiatric treatments as a child), and sentenced Jones to death.
Jones then filed a habeas petition with the 9th circuit, which they grant. Under Strickland v. Washington, he must show that he had insufficient counsel, prejudicing the case against him, and that this would make it reasonable (that is, a substantial probability) that this would have changed the sentencing.
Alito argues that the 9th circuit was wrong for 3 reasons:
(some of those sentences closely follow Alito's wording, don't come after me)
Alito then provides his own analysis of the case, considering the new evidence, and that it would be unlikely to cause any revisions (applying Strickland) to the Arizona courts judgments, because it's not really claiming all that much more, and is in the same categories, and so reverses and remands the case.
Sotomayor and Kagan agree that they should have considered aggravating factors, but did not think that Alito should have judged the merits of the specifics of the case (what I talked about in the preceding paragraph).
Jackson thought that the Ninth circuit acted sufficiently in their methodology, and just because they decided wrongly (per Alito) doesn't mean that they were procedurally wrong. Also, she disputes 1 and 2 above.
Legally, I don't have a clear enough view of what SCOTUS is willing to cover to judge whether the dissents are right.
My own (not legal) takeaways: What the heck are we doing as a country that we can't manage to carry out a death sentence 30 years after he was sentenced? Second, activist courts are really a problem. The liberal justices would all yield to those courts, as they misapply standards. If Jackson's right, their process suffices, even if they're entirely dishonest in their evaluation of the evidence. Third, I'm not a fan of a bunch of these mitigating factors. Being abused as a child shouldn't really be an argument against being put to death for murder.
NRA v. Vullo
Sotomayor (!) writes for a unanimous court. Gorsuch and Jackson each file concurrences.
Vullo, in her capacity of Superintendent of the New York Department of Financial Services had pressured insurers to drop the NRA, saying that she'd found errors, but they wouldn't be prosecuted for them if they did so. Further, there were letters to businesses saying they should drop the NRA to minimise risk.
The court holds that this is illegal coercion, and violates the first amendment, by punishing the NRA for speech through government action. The indirectness of it does not change that.
Gorsuch writes to clarify that this means that some standard tests aren't always right.
Jackson thinks there is more to be said about whether there's a first amendment claim (so, I think, disagreeing with the majority), but agrees overall.
More options
Context Copy link