There are some limited tools to have a moderately adversarial hearing on this sort of topic (eg, some of the cy pres abuses at least involved companies pretending to not want to plea guilty even if the terms were incredibly favorable for the claimed conduct), and some that have pretenses of adversarial hearings (eg, the ‘totally independent’ racial and environmental NGOs the Obama and Biden admin didn’t protest too much). I doubt these would quite the typical Dem or NeverTrumper, but they’d be less overtly partisan to centrists or the politically ignorant.
Of course, the obvious follow-up question is whether those options actually work, here. The absence of any non-partisan adjudicators, or of any even-handed partisans, does not make the odds look good, never mind certain, even where the facts are clear. If neither Vullo nor Palin can fly, appeals to fair courts are a loser.
But this still stinks.
gattsuru
14hr ago
... I'm not a fan of the collusive settlements here, but you do realize what you're proposing, right?
There's something deeply ironic about chasing unsophisticated people who used a program claiming to compensate them for the government's past unreasonable enforcement, without cognizance of guilt, culpability, wrong-doing, or even ability to pay, but there's a pretty obvious ramification and 'next step' for it...
... and it's one the Trump admin could start yesterday, if you keep spelling it out.
I'd be a little interested to know what the current situation is, for your friend. From what I've seen, the overall velocity and pay structure is still looking pretty healthy, with maybe some minor impact that could be holistic economic trends. Admittedly, most of the public data is about the Big Name Popufurs, and imprecise at that, so info from the selling side of the market would say more.
Some of that missing update is because almost all of the 'legitimate' sites ban the stuff and furry is a social environment as much as just a plain kink, but there are Discords and boorus where it's allowed, and it's not too hard to spin up alternative hosts... and those haven't been that badly flooded, either. E621 average around 900 posts per day, to E6AI's 120ish, for example, and that's with a lot of mainstay kinks getting very little focus.
I think part of it's the difficulty of the tools, and another are limits of AI-generator user creativity. You can prompt a ten thousand images overnight of <your favorite artist> doing <your favorite kink> with <your favorite species>, even if the artist doesn't even draw your preferred kink or even sexual orientation. AIgen's definitely beaten prima's test for simple sex in almost any gender combination and hole, and it only takes a little bit of work to get into threesomes or foursomes. But like my experiment three years ago with buff werewolf dudes, the fifth gigabyte doesn't have anything the first four didn't.
There are ways to get novelty or at least 'surprise' out of these tools, but it takes enough effort that most people would probably rather see their own ideas instead. To do that, though, you need to seriously think about what makes those ideas good, or work, and artists have a significant advantage actually breaking things into their components and drives. Even if it's just how poles go into holes.
gattsuru
1d ago
gattsuru
1d ago
Isn't the more parsimonious explanation that the Court wants to see what the En Banc 3CA does with ANJRPC.
Okay, overthought this a lot harder while shepherding some students, and there's an option that does have a stupid amount of explanatory power. It's not that SCOTUS necessarily cares what the Third Circuit says or even does.
It's that SCOTUS wants ANJRPC in their hands for procedural reasons.
The Third Circuit's been writing ANJRPC for several months. There's a tiny chance it could end up pro-gun, but not much, and given Bove and its own internal characteristics, it'd not be a great vehicle. In the more plausible case, it's an anti-gun or messy decision, and then it has nothing going for it as a vehicle that Snope or Duncan didn't on magazines, and if SCOTUS wanted the , it could consolidate Duncan and Lamont or Viramontes. It still takes about two months to dial it up to fully brief a request for certiorari, and that's assuming no one delays. So it can't be something they're waiting to grant for this term, and if it doesn't drop until late October/November -- absolutely plausible given Koons -- it's possible it won't drop in time to fully brief and argue next term, either. That would put it directly into the 2028 primary season.
But if SCOTUS grants Duncan or a sibling case, ANJPRC freezes. That's not a strictly required, but it'd be the default option, and enough judges in the Third Circuit will want to do that. But that means that there's an almost-complete opinion that's sitting on the shelves for the year-plus timeframe on top of the current several months. No matter what ANJRPC's logic or decision is, it's not something SCOTUS wants coming out mere months after a pro-gun Duncan does: if the 3CA was going to defy SCOTUS before, now there's a lot of incentive to doing it again right away with a handful of references to Duncan's new test scattered in, so it can't be easily GVR'd, either requiring a grant with per curiam or letting it slip.
That actually gets a little worse because of "zombie precedent". Once a case is final, its specific topic is foreclosed from further review by lower courts. The standard form of this is the Locke v. Davey. Locke is a very specific SCOTUS case on education grants being able to exclude religious topics, and it's almost-certainly bad law given Espinoza, Carson, and Trinity Lutheran. But it's not been explicitly overruled, and for various procedural reasons there's almost no chance it'll ever get up to SCOTUS for years, and even if a test case comes up SCOTUS doesn't have to grant. That means any other court facing the same question is bound to just say no, not give opportunities to develop the record, and at most just say 'X precedent is bad' in a dissent or concurrence.
But this problem applies to en banc cases. En banc review is supposed to be exceptional, and anyone challenging binding precedent from an en banc court has the same gamble as someone aiming for review from SCOTUS.
And it's worse in gun cases, because they're so heavily bound to facts. Duncan and Gator's Custom Guns might be about magazines, but any SCOTUS holding will only be about 10-round magazine limits. Viramontes and Grant might be about assault weapons, but any SCOTUS holding will only be about their specific assault weapons laws. In front of fair courts, this shouldn't be read to ridiculous bounds: as I'm found of pointing out, Lawrence v. Texas did not leave lower courts uncertain about whether the state could ban handjobs. If you don't have fair courts, though, it's a big problem.
So... the three dissenters and Kavanaugh, if they genuinely believe these laws are unconstitutional, can't win by just granting one case and writing a really strong doctrine. They need a posture where they won't be inviting defiance from lower courts the very next month. At the same time, they can't just wait to take the last court case to arrive, because any precursor will be embedded into the circuit courts.
The interesting aspect is that you can read Bruen as kinda a prototype for this approach. The original NYSRPA I case was tactically mooted at the last second, in a form that arguably should have continued under normal mootness doctrine. Notably, _Kavanaugh wrote separately in NYSRPA I:
Compare the Snope:
NYSRPA I had lined up ten cases on hold, six of them about other carry laws, in the 1st, 3rd, and 7th Circuits. Bruen itself only had one carry law, Young v. Hawaii, and then the three firearms hardware cases: ANJRPC, Duncan, and Bianchi (nee Snope). Young had a weird and complicated aftermath: after remand, Hawaii tactically mooted the original law only to replace it with a 'sensitive places' one along with some punishing carry requirements, and then gun rights orgs promptly filed a follow-up lawsuit...
Which is Wolford. In front of SCOTUS right now, albeit only on the single worst part of the sensitive places doctrine.
So all of SCOTUS has to be intensely aware of how much direct defiance lower courts have enabled, because they're writing on it and circling the last drafts literally this session and figuratively now. Whether that means they're going to do anything about it is a harder question. I'm not optimistic: SCOTUS punted on Antonyuk v. James last year after GVRing a precursor post-Rahimi, if only on preliminary injunction, and did limit Wolford to the 'vampire rule' that even Antonyuk didn't accept. But it's at least plausible.
In this model, SCOTUS is trying to line up as broad a jurisdiction of , to grant one or more, and then GVR the rest after the holding with aggressive language and some less-figurative-than-normal circuit riding.
I don't really believe this theory with any confidence. It requires at least four and probably five members of SCOTUS to be coordinating at a pretty high level, to be aware and willing to engage with the depth of the Locke problem here and not elsewhere. Alito specifically would have had to make some pointed references at the Third Circuit about actually making en banc decisions in a recent timeframe (and not gotten active resistance in return, but this has been an general issue for them). Snope and OST were outright denied, and doing so means that there's two circuits that challenging these laws post-Duncan is going to be a mess, and the Fourth Circuit in particular is going to be prominent for Virginia reasons that SCOTUS may or may not have realized a year ago. There's a lot of moving parts and epicycles.
It's copium.
But it does have a weird amount of explanatory power. The Snope trio and Kavanaugh could vote to grant cert at any time, and might do so if ANJRPC delays too long, but they benefit from waiting specifically on pre-grant event updates, unlike negotiation, information, or defensive denial theories. Roberts can't try to push a grant vote even if he wanted to put ANJRPC and Bove in timeout, because the alternative of explicit defiance on a major holding just months before election season and magnified by an explicitly partisan judge is much worse from an instutitionalist perspective. Barrett has similar motivations to Roberts if she doesn't want the case, if she does, she's joining the Snope trio too. The progressive three don't try to force a grant vote because they don't see it as politically useful to radicalize people on gun politics during primary or electoral season, either out of principles or pragmatics. The relist cadance makes sense because ANJRPC could genuinely just get released at any time, even if it's probably not dropping before Wolford, and the grant coalition wants the case cluster to be high-profile and both to keep the Third Circuit on notice and as a statement that SCOTUS won't ignore cases just because of procedural hi-jinks.
And it is testable. A bulk denial means that this theory is hilariously wrong, a grant of one or more cases before ANJRPC drops is weak counterevidence, a grant in the first two or three conferences after ANJRPC drops is pretty strong evidence, and holding over the whole cluster from one session to another is moderate evidence (but at least explicable!).
Still give it less than 5% odds, and that's optimistic.
gattsuru
3d ago
the AI image is simply worse, because (very briefly and roughly) human effort has intrinsic value, connecting with other humans has intrinsic value, the total historical and social context of an artwork has intrinsic value, etc.
Outside of the objections others have provided, does this apply when the AI imagegen process involves those features?
Some contemporary discussion here and here and here.
I am pretty sure hydroacetylene is a person, and I'm not even sure his predictions were unreasonable so much as missing the cultural influence of porn artists on the left. TheAntiPopulist..., uh, not gonna make a bet on that one.
gattsuru
4d ago
The court being unpredictable is definitely right, but it's the sort of explanation that doesn't really explain anything. There's a very small number of people making specific concrete actions in ways that seem to directly undermine their own interests. "They're cowards" or "they have the 2a" doesn't explain it, because cowards or the liberals could have just denied in November. That's kinda the point of the post above; the normal explanations don't actually match the behavior we're seeing with.
I mean, I guess you can go with the process where SCOTUS joins the other two branches of government as being lead by insane people, and that does fit, but not very optimistic.
gattsuru
4d ago
I think my scaffolding around this is that if Texas doesn't want to recognize a NY gay marriage, that's fine, its their prerogative. But if the federal government want to say the NY marriage is invalid federally they are denying the state's ability to officiate legal marriages according to the state's-populations desire.
This... gets messy, then. The underlying motivation for DOMA was Baehr v. Mike, the perception that the Full Faith and Credit Clause would require every state to instantly recognize the potential one-state gay marriages, and was signed into law by Bill Clinton with large bipartisan support. That makes it a very awkward fit into "Red Tribe vs Blue Tribe". Even assuming that frame, the federal benefits of marriage are limited and primarily focused to domains (tax deducations, military benefits) that don't match the normal personal/government-provided divide. State-married people under DOMA would still get state-specific benefits. It's not clear that there was any other equilibrium short of a) some consistent agreement that no one attempt those cases, cfe Windsor, or b) Red Tribe getting squished by Blue Tribe Three Gay Couples From Hawaii Specifically.
303 Creative still functions as a federal constitutional carveout from Colorado’s LGBTQ anti-discrimination law. Even if it applies a formally neutral First Amendment rule. Colorado is requiring a business that sells wedding websites to sell the same product to same-sex couples that it sells to opposite-sex couples.
If you put it like that, it sounds like SCOTUS stopped a Blue Tribe state squishing a Red Tribe person. I get what you're trying to motion toward, but there's not really a level of specificity where this was some new first step -- either there's a long series of First Amendment association cases that overturned Red Tribe laws predating this matter by decades and using this exact avenue, or there's a lot of anti-discrimination laws that required exactly this sort of active behavior targeting Red Tribers.
Espinoza... Carson... This is probably pretty neutral if there are equivalent examples of conservative states being forced to subsidize things they reject. But off the top of my head, no conservative state has been forced to fund Planned Parenthood with its own money.
You're not going to find lawsuits, but the ACA required all states accepting funds to support gender therapy and any state accepting medicaid expansion plans to cover preventive contraceptive services. There was actually a big mess just last year about trying to throw (some) Planned Parenthood programs out. And before that there was the thing with the nuns? The biggest case was Pennsylvania, so purple state, but there were a bunch of follow-ons in deep red states. I'd normally put that in the marginal 'well, it is federal funding' bin, but there's a bunch of complex rules with matching state funds and punitive efforts for those states that didn't join, so it's still a pretty good if imperfect match.
But more generally yes, there were and are quite a lot of things like that.
I think SFFA gets more into the weeds on what constitutes "Blue Tribe", as its a liberal vs progressive ideological fault line. It's not as clean but progressives are not really the anti-discrimination party, they are a racial/minority-spoils party.
But the rule in SFFA -- don't discriminate in education by race -- was used and is used very aggressively against Red Tribers first. It's famous for it! A President literally sent the national guard in over it. Even if you want to salami-slice the liberals, the progressives still use the very precise rule here to do everything from review college admissions programs to demand that Red Tribe elementary schools spend enormous amounts of money on ESL training. There was over fifty years of this before SFFA. There's a fair argument that it's not popular among the Blue Tribe normies (there was famously a California constitutional amendment prohibiting it... which immediately was ignored), but it's still a Blue Tribe rule that was used to smash Red Tribers long before the Red Tribe picked it up.
gattsuru
4d ago
We'll see if there was any motion on Duncan, ten years in, on Monday.
This is kinda a weird grab-bag. I don't think your point is wrong, per say, but the examples don't really fit at first glance.
I'm in a hurry so can't check precise details, but Janus is a union case and most unions are creations of federal law under the NLRA: Complaining about federal regulation allowing free speech or free association is kinda a 'get your government out of my medicaid' model. Nope, strike that; public sector side of AFSCME. I guess that does fit on the edges, although the financing and funding model is still a little fuzzy.
Same for DADT, except even more, since the military isn't very Blue Tribe and it only applied there (and with some limited exceptions). DOMA only applied at the federal government level, and specifically didn't stop states from recognizing gay marriages locally.
Masterpiece Cake Shop just (infamously) held that a civil rights law's administrative bureau couldn't be openly hostile to the religious nature of its defendants.
Maybe 303 Creative/Espinoza/Carson/SFFA? But those are all antidiscrimination laws that progressives claim to champion; the main thread in each case was the neutral application of a longstanding rule that had been used for Blue Tribe ends at length. Even accepting the framework as 'laws that Reds have imposed on Blues', rather than 'laws that Reds have made sure didn't apply solely against Reds', they definitely can't be give as good as they got, given the wide scope these antidiscrimination laws have in Blue-friendly contexts.
gattsuru
5d ago
Yes, agreed. And the slope goes down pretty fast, if not 'execute people for not recycling in three days' fast.
((well, maybe in Canada.))
There's another one, which is that the law is moved by people more patient than you or I.
It might have been persuasive a year ago.
Isn't the more parsimonious explanation that the Court wants to see what the En Banc 3CA does with ANJRPC.
That's the popular explanation. As soon as SCOTUS grants cert for any hardware case, ANJRPC freezes; thus SCOTUS has to hold certiorari votes until ANJRPC releases.
But the timeline kinda breaks down. SCOTUS has seven conferences (including today) left in this session: that's a public schedule, they don't change it, and while it's technically possible to hold cases over from one conference to another, it's rare. As far as I can tell, it's literally unprecedented to have a cluster of cases with this many relists held over from one session to another, or for even one case with this many relists and a broad constitutional right applications (rather than a capital case) to be held over. So there's a strict timeline where some decision, to grant, deny, or hold over, has to happen on June 25th, to be published June 29th, or in the immediately following unofficial clean up conference (typically the last week of June or the first week of July).
ANJRPC had oral arguments October 15, 2025. In theory, the Third Circuit sets an aspirational goal of 120 days between oral arguments and decision, but that's a joke, especially in en banc or politically contentious discussions. We didn't get an ANJRPC opinion in January. In practice, a typical case in this class of discussion would take six to ten months, and this isn't a typical case. It's a consolidation of three different cases (ANJRPC was mostly about magazines, Cheeseman on assault firearms and licensing, Ellman on assault firearms and the 'substantially similar'), ANJRPC itself was previously GVR'd by SCOTUS, an underlying district court decision was an absolute charlie-foxtrot that cabined the matter to one specific model of rifle, so on. ANJRPC-the-organization is hoping on June 30th, aka 'too late' for SCOTUS.
There's also very strong incentive for the Third Circuit to not issue a decision until after Wolford is issued. The case itself isn't likely to matter much, since Wolford is a sensitive places case and probably a pretty limited one focused on the vampire rule, but no matter what direction ANJRPC goes they don't want an immediate GVR to review in light of Wolford. But Wolford had oral arguments January 20th, 2026. And while SCOTUS moves faster than the Third Circuit, and determines when Wolford is issued, most courtwatchers are predicting the last week of May or mid-June. Even if Wolford's opinion releases in May 21st, and it has little relevant dicta, the Third Circuit would be rushed to publish before June 25th. If Wolford isn't going to issue until June 11th -- and SCOTUS can estimate that better than we can! -- then there's zero chance.
((If ANJRPC gets enough votes to go in a pro-gun direction, there's also a nontrivial chance that a judge on the dissent could be hold the case up just to delay things even if Wolford dropped today. There's precedent for that in the 4th Circuit.))
That's weirder still because SCOTUS has a procedure for silently holding certiorari grants if they're waiting on some other actor, even after the question was fully briefed. ANJPRC's last go-around is actually an example, here: it was held in abeyance from August 25, 2021 to June 29, 2022. And that can happen for pretty arbitrary reasons: other relevant cases SCOTUS are hearing is the most common, but possible settlement agreements or waiting for lower court opinions both happen.
Now, SCOTUS doesn't have to do that. But if SCOTUS knew in December that they weren't going to grant or deny for six-plus months, relisting the cases for every following conference just makes these cases higher-profile, and the tension is only heightened by Snope's aftermath. At minimum, it makes no sense to have scheduled Duncan in November, months before Wolford even had oral arguments.
The current holding pattern is worse than any alternative for any judge that wouldn't grant cert outright. Snope itself would have just filed away in the increasing pile of Funny Thomas Dissents like Harrel v. Raoul if it had died at seven relists rather, and might not have even registered on even gunnie-legal-sphere radars if it died at the first conference. It'd still be humiliating for Kavanaugh to deny cert when he specifically highlighted a couple of these cases, and it's only getting more humiliating with each relist.
There's also a very ugly and very political argument about whether Roberts, of all people, wants ANJRPC to issue any opinion at all before SCOTUS can see the case again. The elephant in the room is Emil Bove, who was appointed just before the Third Circuit pulled the case up for en banc review before judgement. He's contentious and perceived as a Trump hatchetman. He's also basically the only chance the case has for a Bruen-compatible result, and it's a long shot.
It's also the last of the post-Bruen GVRs.
There's not really many good options from the institutionalist perspective. And Roberts is nothing if not an institutionalist.
- If ANJRPC upholds the various gun bans, or sets a sizable majority outside of the category of being "arms in common use", you don't need to be The_Nybbler to see that the lower courts are in full revolt. That's the default case, since that's what the lower courts did last time around, and there's been more Biden appointees added to the en banc panel than Trump ones. Roberts (and Kavanaugh) gets no new information but that they've been burned, and Roberts specifically doesn't want that information to be highly publicized.
- If ANJRPC faithfully applies Bruen, even if it doesn't strike down all or even a majority of the laws, by a slim margin, it widely telegraphs that the only way to get progressive-leaning circuits to follow the law is to appoint Literally Donald Trump's lawyer. That kills the blue slip system, it burns a massive amount of credibility for the institutionalist project, and it fulfills the very criticisms of the Federalist Society approach that Trump brought as support for Bove. Then SCOTUS either has to throw the inevitable appeal on the docket as soon as possible, GVR in light of a case that's now dropping late in 2027, or risk having oral arguments and a major gun control opinion drop during the middle of the 2028 election season, either in ANJRPC or from a late-granted case in this cluster being held over for a year. Even just permanently punting on hardware bans, and making Snope's statement into an overt lie, looks pretty bad for the court as an institution. And to do that, Roberts has to talk Kavanaugh into abandoning hardware cases, permanently.
- If ANJRPC is a mess -- an order with six different not-quite controlling opinions, remanding back to the lower court for fact-finding that doesn't exist, one of those 'x joins y for I-A and III-z but not the rest of the opinion' things -- it gets even worse, as now either the lower courts are so partisan that they can't handle a long-standing case in a consistent way, or so partisan that they can't even figure out how to defy Bruen, or they're genuinely confused by Bruen. That cordons off any later attempt to 'refine' Bruen: it spells out that it isn't happening throughout the country. Another one of those 'Roberts would rather chew glass' things.
The steelman of the next argument is not telos, but impact: advocates of this position believe the firearms are unnecessary for normal (or sometimes all non-military, or even all) users in ways that's not applicable to pocket knives or kitchen knives. This tends to get some fuzzy exceptions, but it's not fundamentally wrong, and the same people will often bite down on the bullet regarding smoking, speeding, or dangerous dogs.
((And Terrific is strawmanning Superman's argument in that scene. It's an Injustice film, so anyone who actually watches it knows Superman is going to go off the deep end, but at this point in the movie, Superman hasn't started intentional mass killings yet, or particularly aggressive treatment of normal criminals. He's a dictator, has killed the Joker, and clearly believes himself responsible for the deaths of Lois Lane and most of Metropolis, but it wasn't inevitable.))
The intermediate response is that necessity exists for firearms, even leaving aside the 30-40 feral hogs. Self-defense and hunting are legitimate needs, and for many people can exist in situations where their counterparts are not armed. The first time Superman hears a cry for help from someone he's disarmed, rushes to save them, and finds that they've been beaten to death before he could get there... well, there's a Irredeemable joke there, but I've got mixed feelings on the comic, so meh. Marksmanship and shooting sports are as legitimate as rugby or cycling for entertainment.
The more serious response is that it wouldn't work, and that's one that people don't really like to think about. If you can press a button and make every firearm on the planet disappear, CTRLPew will be making new ones within the hour. If you can press a button and make all of the ammunition disappear, there's a furry on twitter that made it out of thin air and scrap metal for fun. If you press a button and destroy the concept of guns, the same underlying technology makes bombs. Industrial farming depends on bombs. Several cult organizations have made biological weapons for weird ideological attacks, and ricin or some basic chemical weapons are so easy to make by accident that we have guidance to not do it by accident. Ukraine has just started to show some of the mechanisms that what used to be a funny child's toy can do.
If you sit down and think, seriously think, about what someone actually devoted to maximizing fatalities could do with the contents of a typical big box store, the entire exercise falls apart. ((Further information not available here. If you see the gap, do not spell it out.)) In the setting of Injustice, that gets even more ridiculous -- a high school dropout invented the cold gun and regularly stands toe-to-toe with The Flash -- but you don't really need to go to that extent.
The next step involves discussing marginal impact: availability of firearms making murder, and especially murder committed by the stupid or incapable of planning, easier. There's some questions about how long that lasts - the school shooting did take somewhere between thirty and fifty years to develop as a 'concept' after the material technology was available - but given the modern transfer of concepts like the vehicular mass-killing, that's probably an outlier.
Typically that's about the part where people get distracted or pull back.
gattsuru
5d ago
An approach several furry 'directors' have moved toward is initial generation in Nano Banana / GPT Image for general layout and primary characteristics, and then a quick IMG2IMG step is a more focused model applying LoRA or heavily style-focused guidance or using something natural-language-friendly like Qwen Image Edit. May be worth evaluating for this project if you're considering something much more semi-automated.
gattsuru
6d ago
... the awkward part is that there's probably a lot of untapped ground in an essay like that: since most writers either approach the topic from both moral and disgust opposition, or from the derpitarian position that ignores the moral issues by waving at the disgust reaction, actually engaging seriously with the moral ramifications while not being disgusted by the physical mechanics could be genuinely novel ground.
But by definition, it's the sort of story no one actually wants to read. Which probably answers is a bigger change to the "backlash against LGBQT ideology only could grow because increasing numbers of people were willing to frankly describe, outside of the gatekeepers eye, the physical acts being performed routinely in great detail".
That's a plausible story, albeit one that's a fulfillment of FCFromSSC's "The Constitution is dead", though it still runs into some issues as a model:
- the court has not been quick to strike down federal regulations on gun ownership, either, nor have they accepted cases clearly within federalist bounds (eg Gardner).
- there was 49+ years of Roe, which heavily controlled state abortion law. The sudden discovery of federalism only once real rights could be protected instead of made-up ones actually makes it worse.
More immediately, it also doesn't explain the pattern here. If there's nine votes to deny the Duncan cluster because they have very strong view of federalism, it doesn't get a relist. If eight, or seven, or six votes to deny the Duncan cluster exist, a handful of relists happen while Justice Thomas writes a barn-burner dissent, but if he's writing too slow, they can call his bluff at any time and force the vote. What are they gonna do, piss him off more than Roberts pissing on Bruen?
That's the weird, and noteworthy, and inexplicable part. Any model that predicts a denial of certiorari needs to explain why that didn't happen three months ago. The court could have punted all these cases, gunnies would complain a little, and that would just be another step in a pattern that's been around for decades. Instead, they've spent six months contemplating a set of cases that have been on their radar for over a year. Indeed, the standard argument from court listeners is that Kavanaugh is the marginal vote, and he's the one that's going to be the most badly humiliated by those whole process given Snope, and it's only going to be more humiliating the longer the relist cycle goes.
Similarly, any model that predicts a grant needs to explain why that didn't happen in early April. If a grant happens in the 13+ cases, it's a arguably a record; if it happens in two weeks, it's unarguably so. If a grant happens in multiple 13+ cases, it's even more extraordinary. And those are the cases with the best vehicles! And a denial for Duncan while granting cert in Lamont is even weirder, since there's no plausible story where Lamont's lower case is bad law but Duncan is a-okay, and denying in Duncan cements its law and demands hundreds of thousands of people give up property they lawfully purchased under a legitimate court order. Even if the court needed the later cases and is struggling over vehicle questions, 8+ relists is still a massive outlier, and it's all the greater an outlier for having considered these cases a year before they came to the court.
Why? is a serious question, here.
gattsuru
6d ago
Couldn't you argue there's a difference between the right to own firearms and the right to carry firearms?
In addition to the other issues other writers have mentioned, the Duncan cluster here is related to bare ownership, in some cases long-standing ownership without a grandfather clause, and has not resulted in a fire lighting under SCOTUS's tail. VanDerStok was not a carry case, either.
And this gets wielded even by liberal prosecutors because, often, guns are worse than being mean to minorities.
I have a funny story for you.
As a gun owning Blue state resident this is a constant thorn in my side. However, its not really that big of a thorn in my side, which SCOTUS knows.
If Gardner had gotten review, I'd care less. If Adamiak wasn't a felon praying for a pardon, I'd care less. If Dexter Taylor wasn't in prison -- and going to be in prison longer than a man who beat someone to death with a megaphone, or that guy who shot at police, or both of them combined -- I'd care less.
[edit: correction, Gardner is a misdemeanant]
SCOTUS has defied all its normal rules about procedural posture to protect the rights of an illegal immigrant in six hours on a holiday weekend. There's a world where that says something about rights, and another world where it says something about illegal immigrants.
[cw: exactly what you think from the block quote]
I suppose training an adolescent dog to be the one penetrating is possible but it seems extremely difficult; aren’t dog members not nearly as stiff as humans?
I'm... aware enough of certain scandals to suspect that at least some dogs could be trained to mount a specific person without a massive level of other infrastructure, but I'm skeptical it could be done at the scale, organization, and direction claimed here. And then you need the motives on top of that.
gattsuru
6d ago
That's definitely a model and it does explain an anti-gun court that doesn't just grant-and-eviscerate all the time, but I'm kinda filing it under 'Thomas is writing a dissent', and there's still not enough there to explain the relist count. Thomas can write very long dissents, but especially if the other eight (or even seven) justices were never going to take Bruen seriously, he has all the more recent to write that long dissent as soon as Snope dropped last year. If he's not and knows he's not persuading them, the relists do nothing.
Conversely, if Thomas is getting something non-obvious out of it, why wouldn't the majority just GVR, per curium, or give a long angels-on-pin-head meaningless opinion? Roberts never has to assign the opinion to Thomas against post-Bruen, and even if he did, it clearly didn't do anything.
Counting To Four In Duncan
[tl;dr: woolgathering that's likely to be outdated in seven weeks. tl;dr, shit's fucked, shit's weird, and it's actually weirder than it looks at first glance even from a specifically pessimistic view.]
Five major cases involving magazine capacity restrictions, assault weapon bans, or a combination thereof, are waiting on SCOTUS. This class of restrictions has been a major focus on the national stage since 1994, and while the federal ban has sunset, many state bans remain and have grown. They've become more common, have banned wider or more arbitrary classes of guns, have invoked lower capacity limits, and have provided fewer and fewer procedural protections to previous gun-owners, such that several jurisdictions now offer no grandfather clause at all. As since those procedural protections included the phrase "When dealing with guns, the citizen acts at his peril" since 1994, it's not been a space of light disagreement.
Duncan, Viramontes, Lamont, Gator's Custom Guns, and Grant are all requesting certiorari before the Supreme Court, covering bans on firearm magazines or various rifles. Gators, Duncan, and Viramontes are at 13+ relists (aka from December 5th). Lamont and Grant are at 8+ (aka from February 20th). I'll be using Duncan as a shorthand, here, as while it's always possible that one of the other cases will end up The Important One, it's at least recognizable name. The current SCOTUS session will continue with seven more conferences, ending at the tail of June.
It takes four votes at SCOTUS to grant certiorari. A grant is by no means a win on the merits. It's not even a guarantee of a decision on the merits: cases can have certiorari granted only for an immediate remand, or later dismissal as improvidently granted. It's just the most basic opportunity.
And a request for certiorari is a process. A large portion of requests aren't granted or denied at their first hearing. Instead, the interesting cases are relisted, reviewed for a week or two, and then either granted or denied. Classically, a few relists are a good sign for a case's odds.
But there's a limit, there. The case with the single greatest number of previous relists before a certiorari grant and full merits review is Masterpiece Cakeshop at, depending on how you count, 12-14. It was a pretty extreme outlier in many ways, quite a large number of which don't make the comparison happy for gun rights proponents. Bostock had 10 or 11 at grant, depending on how you count it: less than Duncan, and with clearer alternative cases. Otherwise the normal course, to borrow from SCOTUSblog, "[l]ess is more with relists". Snope got 15, and then denied. This session's highest-relist case, Smith v. Scott, received an extremely unusual 17 relists... to be granted, vacated, and remanded, not reviewed on the merits. That's an avenue that is useless for Duncan specifically, where a past GVR just resulted in the 9th Circuit rubberstamping their original logic (along with some procedural gimmicks), and where none of the hardware cases have an obvious vehicle to justify further review. That gets even worse for a cluster of cases like this, where granting one and denying others means that whatever merits decision SCOTUS gives will be quickly cabined to only that specific case's bounds.
Normally, talking about requests for certiorari runs into problems because there are just so damn many options. SCOTUS only has mandatory jurisdiction over a tiny number of cases, grants optional cert to only a similarly tiny number of others, and can choose to grant or deny certiorari for any reason or no reason at all. Some cases with minor disagreements and esoteric scope get immediate grants, others with massive breadth and serious disconnects get juggled and dropped or just dropped, and when death penalty or habeas corpus cases are involved the rules easily exceed the scope of this conversation. Everything from whether a response is requested to how quickly the first conference is scheduled can mean something or nothing. There's a small industry of tea-leaf readers who really like being humiliated, because it's not a job with great success rates on those predictions.
Here, though, a wide breadth of the normal options are overdetermined away:
- SCOTUS refuses cases where four justices can't agree to hear on the merits. That's what the certiorari vote is. Here, though, we know four justices have declared that this is a matter that SCOTUS should hear soon: the three dissenters (Thomas, Alito, Gorsuch) in Snope did so by dissenting, and Kavanaugh specifically claimed "this Court should and presumably will address the AR–15 issue soon, in the next Term or two". Kavanaugh listed Lamont and Viramontes as two specific examples: it makes no sense to point to them, and then not know if they're worth granting or denying cert. And it's not like he can be waiting on the other three in his list:ANJRPC is waiting on SCOTUS to deliver Wolford and Hemani, Capen is three or four years away from getting to SCOTUS, and Miller is stayed until Duncan finishes.
- SCOTUS (sometimes) refuses cases where lower courts are 'percolating'. That was a thin fig leaf in Snope, and it's since become transparent. Even if Kavanaugh's list was only of court cases that would inform SCOTUS, rather than specific ones to grant cert, Viramontes, Capen, Lamont_, and Miller have all resulted in court opinions turning Bruen into a dead letter.
- SCOTUS (sometimes) refuses cases where the lower court action is appealable, but not final. For Gators, Duncan, and Viramontes this is the last opportunity. If denied, they're not coming back. Grant and Lamont are decisions on a preliminary injunction, but if denied these cases won't make it back to SCOTUS return for three or more years. And if interlocutory appeals were a genuine problem Kavanaugh wouldn't have highlighted Lamont or Capen by name: they were preliminary injunction cases years from their final judgement.
- SCOTUS (sometimes) refuses cases even where the legal question is important, but where some specific detail of the case's factual history makes it awkward, inopportune, or ugly, especially where a better alternative vehicle is coming up. Here, we have a wide variety of options, and while no case is ever genuinely simple, there's enough variety that the court can easily pick one as multifaceted or straightforward as it wants. Meanwhile, of Kavanaugh's list in Snope, only ANJRPC v. Platkin will be up for certiorari on final judgement next session, and has wide overlap with existing options. The only other new serious challenge is Benson v. US, and that overlaps almost entirely with existing cases.
- SCOTUS (sometimes) relists cases where another case on the same topic is being actively decided, to later grant-vacate-remand the case. In theory, this saves judicial resources, so that SCOTUS does not have to give the same decision in multiple sequential cases. But the only relevant Second Amendment cases are Hemani (prohibited person) and Wolford (sensitive places), neither of which are related to the topic of firearms hardware bans. Worse, Duncan in particular has been GVR'd before, after Bruen, which did have significant topic overlap and wrote the specific framework Duncan was supposed to use... and just resulted in procedural hijinks and a near-identical decision from the lower courts. No plausible dicta in a prohibited person or sensitive places case (or combination of the above) will change the 9th Circuit's behavior.
- SCOTUS (sometimes) refuses or relists cases where lower courts are deciding a substantially similar question and likely to release a decision very soon. The only remaining relevant court case here is ANJRPC. It's near-certainly not going to issue before both Hemani and Wolford drop, though, and SCOTUS knows it, and SCOTUS controls when those two cases were heard and when their opinions will release (very late May, June, or July). These cases can't have gotten relisted since December for a lower-court opinion that wouldn't come for months, and may not come before the last conference of the session. SCOTUS doesn't have to keep relisting a case if it's waiting on some external information; it clearly didn't do so here.
- SCOTUS (sometimes) relists cases when deciding a topically similar case. But Wolford was argued January 20th, Hemani was argued March 2nd. Still not compatible with the relist scheduling.
- SCOTUS (sometimes) relists cases when trying to select which one of a cluster to make the lead case, or which to grant and which to deny. But these cases have been and on the radar for over a year, and their traits aren't changing by the week: the constant relists don't fit that model.
Worse still, many of the 'alternative' explanations -- the ones that don't match to 'justice is blind', but everyone accepts happens -- don't fit, either:
- Justices don't want to grant cert in big cases that they know they'll lose big (aka 'big defensive denial'). This has been the perennial
excuseexplanation since well before Heller: a premature case can leave residue that would destroy entire movements. But there's little, if any, chance of that here. Forget the question of adherence to the Second Amendment: a reversal of Heller or Bruen would require Roberts and one other judge to explicitly overturn a recent major case they signed on. If he's in the majority, Roberts would have to specifically assign the opinion to the judge writing that. He'd rather eat glass. - Justices may not want to grant cert in cases where they know they'll get a small loss, or a half-assed and incomplete victory (aka 'little defensive denial'). This is the Rahimi problem, where the case doesn't overturn precedent, but it does entrench new exceptions to the Second Amendment. Roberts did exactly that in Rahimi. But Rahimi did get certiorari, it didn't change the cert vote for Hemani, and the results of a Duncan decision along similar lines are already baked-in: every circuit likely to see a hardware ban already has standing precedent neutering Bruen. The worst-case plausible scenario for rolling the dice is the same as not rolling the dice at all. More confusing still, if Roberts and Barrett were willing to do that, there's strong support from the progressive wing of SCOTUS to trim back Bruen and/or Heller, and that's not happening either.
- One proposed explanation is that the Snope three and Kavanaugh want to avoid granting certiorari to a case that would neuter other upcoming cases. But that doesn't work, either. If five justices are willing to sign onto a decision in Duncan that will neuter any upcoming pro-gun decision, the same five are willing to grant certiorari and overturn those upcoming pro-gun decisions whenever they actually happen.
- Delaying doesn't even save the opinions from any relevant lower-court case: Duncan will not be getting oral arguments before ANJRPC's en banc opinion issues; even assuming that opinion is pro-gun, a grant today only determines whether SCOTUS is deciding Duncan informed by that opinion, or ANJRPC to overturn it directly. And, of course, ANJRPC may well get an anti-gun ruling, anyway, at which point there's nothing for an anti-gun Duncan to disturb.
- Justices may want to delay until a better court composition is available. But there's little, if any, chance that will happen here: the two oldest members of the court are on the dissent from denial of Snope, and Alito in particular is already getting calls to retire because of it.
- Justices may want to delay until a less politically sensitive environment is available. But a grant now means a case being held in early 2027. The environment isn't getting any less sensitive in 2028 or 2029.
- Justices may want to delay until a less politically charged environment is available, in what I've criticized as "look, we didn't vindicate their fake rights or your real ones". But the cases lining up for 2028 and 2029, don't look great here, either, and it's far from clear the court's ever going to have a quiet season.
- Justices may want to delay to firm up their own positions, or persuade colleagues to shared positions, or to gather information. But this is a case that's been explicitly on their radar for a year now, been to SCOTUS once before in 2022, on a topic that's had national relevance since 1994. There's nothing happening now that didn't happen when talking Snope. The typical proposal is Kavanaugh or Thomas trying to persuade Barrett, here, but that only works if there's something they can only persuade her while relisting and not between grant and decision, and that if they fail to persuade her there's something they're protecting by waiting. Neither applies here: the justices aren't kept isolated between conferences or court sessions, and Bruen is a dead letter without further SCOTUS intervention.
- Justices may relist a case repeatedly when writing a dissent from denial of certiorari. Morbid thought if you own a Freedom Week gun and live in California, but worth spelling out. Yet I'm pretty skeptical that it would take Justice Thomas six months to finish figuratively tearing apart the court's center or trying to build new frameworks, and in a world where Bruen is a dead letter, it's not clear anything he'd write here could matter, and he has to know that. Worse yet, if he knew he was going to be Snoped again, he could and would have started writing the broad strokes a year ago. Any justice writing today is writing in the shadow of Snope, and if the vote breakdown is remotely similar, then the every justice knew something like this was coming and had time to prepare.
- A specific justice might have changed their mind. Kavanaugh said the court should grant certiorari for a case like this, in this time period, but he said that a year ago. Yet that's hard to believe. Kavanaugh has said assault weapon bans were unconstitutional and should be reviewed by SCOTUS since Heller II in 2011, and again in his statement regarding Snope just last year. What would change his mind in 11 months? What would change Alito, or Thomas, or Gorsuch?
Some writers have also proposed a model of SCOTUS relisting to consider the very short-lived circuit split in Benson. But that decision came on March 5th, Washington DC filed a motion to "Suspend Precedential Status of Opinion Pending Petition for Rehearing En Banc" the very next day, and the court granted a petition for rehearing en banc on April 22nd. There was no change to the relist cadence, and now that en banc appeal is schedule the circuit split no longer exists, it's near-certain that en banc court will overturn the lower court decision. It's also just a messy case for a bunch of more pragmatic reasons, not least of all that it only applies in Washington DC, and only for a law that the feds are saying that don't plan to enforce.
There aren't many options left.
Politics and optics are the simple and ugly explanation. It's also one hard to square with individual decisions. It's trivial to explain why SCOTUS as a whole, or Roberts, might want to punt a case as long as possible. It's hard to understand why a 1-2-3-4 count ending in Kavanaugh or Gorsuch or even Barretts makes a decision on optics, and decides that decision results in a weekly announcement such that they're not moving yet.
To spell it out, the court can't relist indefinitely. Whatever political cost is coming from grant or denial will happen no matter how many times the cases are relisted. Each relist makes the cases more noteworthy, and if any one gets held over a session, it becomes even more noteworthy. Meanwhile, a denial or grant happens once. Certiorari votes are anonymous and aren't even recorded publicly. Neither grant, nor denial, nor GVR, are written down by name and voting record. There's no way to treat one choice as distributed and one as personal. The impacts are the same: the relists just add to the impact.
Snope was not the first hardware case to request certiorari from SCOTUS. Harrel v. Raoul was 2024, and Friedman v. City of Highland Park was 2015. The 15 relists are no small part of why Snope is radioactive and Raoul was just annoying. The wait doesn't look good, and it doesn't make the eventual grant or denial look better.
A long dissent from denial is still possible: Justice Thomas can write some shelf-busting pieces when he wants, or Kavanaugh could be trying to baffle with volume where he couldn't dazzle with brilliance in Snope. Not encouraging to have a member of SCOTUS just outright bullshit in a Statement Regarding Denial of Certiorari, but if the line between politicians and judges gets fuzzier, it shouldn't be a surprise.
Stable equilibrium is the weirdest one. It takes four to grant certiorari. Six, in effect, thus can deny it, though there's a little weirdness on that since one justice can hold or reschedule a request. It takes five to win a case. This leads to the somewhat bizarre scenario where there may be enough justices available to grant and win a case in one direction, but not enough to deny certiorari the other. Another not-fun thought for gun advocates, since in this scenario it implies that there could be five justices waiting to neuter a theoretical pro-gun ANJRPC even if they can't actually refuse Duncan, but it has an unpleasant amount of explanatory power.
Unknown/Other is, unfortunately, the last refuge of scoundrels. There's some internal process we can't know about, there's some special case, there's some unusual deal-making happening, or some other invisible and/or novel process. This could, by definition, mean anything, and could just as easily resolve at any time, or never.
It's also, in a morbid sense, the most damning. These cases hold the rights of tens of millions of people in balance. That's just a fermi estimate of the people in those areas with lawful-but-now-banned guns. For California alone, hundreds of thousands of people will become felons overnight for the bare ownership of simple magazines that they purchased lawfully while relying on the protection of a federal court order, and there is no grandfather clause, and it's not the only example. And for each and every one, the process has devolved to a question mark, and has been for over a decade.
There's an old saying that a right delayed is a right denied, but you don't need to rely on aphorisms, here: in a majority of the United States, the Second Amendment is a dead or near-dead letter. That's not just relevant for assault weapons or big magazines: it's let the Second Circuit ban stun guns and undermine the Fourth Amendment. Dexter Taylor is still in prison. Heller still can't register the firearm from Heller I, and all Benson demonstrates is that to have a chance he'd need to break the law, be arrested, and imprisoned first. Percolation has come at the cost of long-standing and irreparable harm. There's longstanding precedent that the court recognizes infringement of rights themselves as irreparable harm, and the reality is that they don't, here.
I don't want to overstate my pessimism, here. In the immediate aftermath of Snope, I'd said "To be blunt: this SCOTUS will not be address the AR-15 issue in 'the next Term or two'", but 0 isn't a probability. If you absolutely forced me, I'd still put a 20% chance of a grant on one of these five cases, either this session or by holding them over to the next session (though the holdover itself would be a further unusual step). That's a lot lower than the professional tea-leaf readers. Doesn't make their models wrong, even if I get (unlucky). Doesn't help that they've either overlooked, or not included, much of this analysis.
gattsuru
6d ago
Hadn't tried it when I posted that. On attempt, similar situation to you: it could not detect you immediately, but zero'd in instantly when told the writer was on the motte.
This is nonsensical. Was Obama responsible for the Washington Navy Yard shooting because 'the buck stops with the boss'?
More options
Context Copy link