This weekly roundup thread is intended for all culture war posts. 'Culture war' is vaguely defined, but it basically means controversial issues that fall along set tribal lines. Arguments over culture war issues generate a lot of heat and little light, and few deeply entrenched people ever change their minds. This thread is for voicing opinions and analyzing the state of the discussion while trying to optimize for light over heat.
Optimistically, we think that engaging with people you disagree with is worth your time, and so is being nice! Pessimistically, there are many dynamics that can lead discussions on Culture War topics to become unproductive. There's a human tendency to divide along tribal lines, praising your ingroup and vilifying your outgroup - and if you think you find it easy to criticize your ingroup, then it may be that your outgroup is not who you think it is. Extremists with opposing positions can feed off each other, highlighting each other's worst points to justify their own angry rhetoric, which becomes in turn a new example of bad behavior for the other side to highlight.
We would like to avoid these negative dynamics. Accordingly, we ask that you do not use this thread for waging the Culture War. Examples of waging the Culture War:
-
Shaming.
-
Attempting to 'build consensus' or enforce ideological conformity.
-
Making sweeping generalizations to vilify a group you dislike.
-
Recruiting for a cause.
-
Posting links that could be summarized as 'Boo outgroup!' Basically, if your content is 'Can you believe what Those People did this week?' then you should either refrain from posting, or do some very patient work to contextualize and/or steel-man the relevant viewpoint.
In general, you should argue to understand, not to win. This thread is not territory to be claimed by one group or another; indeed, the aim is to have many different viewpoints represented here. Thus, we also ask that you follow some guidelines:
-
Speak plainly. Avoid sarcasm and mockery. When disagreeing with someone, state your objections explicitly.
-
Be as precise and charitable as you can. Don't paraphrase unflatteringly.
-
Don't imply that someone said something they did not say, even if you think it follows from what they said.
-
Write like everyone is reading and you want them to be included in the discussion.
On an ad hoc basis, the mods will try to compile a list of the best posts/comments from the previous week, posted in Quality Contribution threads and archived at /r/TheThread. You may nominate a comment for this list by clicking on 'report' at the bottom of the post and typing 'Actually a quality contribution' as the report reason.
Jump in the discussion.
No email address required.
Notes -
This has been a busy week for the US Supreme Court, with a total of six published decisions on hot-button culture war issues including abortion (a boringly unanimous Article III standing decision, already discussed in its own thread below), gun control, immigration, labor relations, and even a Trump-bashing trademark registration case. Even the sixth case, about boring-old bankruptcy fees, produced an unusual 6-3 split: Jackson wrote the majority opinion, joined by Roberts, Alito, Sotomayor, Kagan, and Kavanaugh. Gorsuch authored an impassioned dissent, joined by Thomas and Barrett.
The trademark case, Vidal v. Elster, is more interesting than it looks at first glance. The question is whether a provision of the Lanham Act (the federal statute governing intellectual property issues), which forbids registration of trademarks featuring the name of a person without that person's consent, is constitutional. All nine justices agree that it is. And yet, instead of a simple unanimous opinion, we get:
"THOMAS, J., announced the judgment of the Court and delivered the opinion of the Court, except as to Part III. ALITO and GORSUCH, JJ., joined that opinion in full; ROBERTS, C. J., and KAVANAUGH, J., joined all but Part III; and BARRETT, J., joined Parts I, II–A, and II–B. KAVANAUGH, J., filed an opinion concurring in part, in which ROBERTS, C. J., joined. BARRETT, J., filed an opinion concurring in part, in which KAGAN, J., joined, in which SOTOMAYOR, J., joined as to Parts I, II, and III–B, and in which JACKSON, J., joined as to Parts I and II. SOTOMAYOR, J., filed an opinion concurring in the judgment, in which KAGAN and JACKSON, JJ., joined."
The gun control case, Garland v. Cargill, divides predictably 6-3 along right/left lines. Thomas, writing for the majority, holds that "bump stocks" are not machineguns within the meaning of the National Firearms Act, abrogating a (Trump-era) ATF ruling that sought to ban such devices.
The immigration case, Campos-Chaves v. Garland, is the closest of all, with Alito writing for the 5-4 majority and Gorsuch joining the three liberals in a dissent authored by newcomer Jackson.
The labor case, Starbucks Corp. v. McKinney, was almost unanimous, except for Justice Jackson's solo partial-dissent-but-concurrence-in-the-judgment. It seems to me (I have not attempted to quantify this impression) that Justice Jackson is much more likely than the other liberals to author a solo opinion.
I have only skimmed a few of these cases, so I don't feel equipped to dive deep into the merits of each case, but I always enjoy the Motte's Supreme Court culture-war takes. For my own contribution, I just want to articulate my view of the Justices' voting patterns: I feel like the Court's conservatives disagree with each other a lot more often than the liberals do. It's very common to see conservatives on both sides of an issue, while the liberals overwhelmingly tend to vote as a block. This week is just an example of the general pattern, I think. Many right-leaning court watchers see that as a bad thing, as if the Court's conservatives are wishy-washy and ideologically unreliable. I tend to see it differently; to me, it suggests the conservatives are more even-handed and unbiased, while the liberals are more interested in conformity and towing the party line--undesirable traits in a judge. As I said, though, I haven't attempted to test my hypothesis by quantifying who voted which way, when. Someone has surely done that, and I'd be interested to see their results.
I'm far too late, but I wrote up the (unevenly too long) following on a plane ride.
A few noteworthy, or amusing things I didn't see mentioned:
The Vidal case is essentially 5-4 on methodology, despite all that mess. I don't really see why the majority is doing what it's doing, at all?
Alito using "alien" and Jackson "noncitizen" at every possible opportunity, which is hilarious.
The dissent from Gorsuch in the bankruptcy case is pretty strongly phrased. Jackson, in turn, quotes back Gorsuch's own words from a previous case, that the dissent is "just that."
Barrett's trademark opinion at one point refers to someone attempting to register a trademark for Duchess of Windsor for ladies' underwear.
Regarding your point on the conservatives disagreeing more, the liberals agreed in eight of the nine cases the last two weeks—the only case not unanimous between them was the (in effect) 8-1 NLRB case, (and I suppose if you want to count it, agreeing with different portions of Barrett's concurrence). Meanwhile, the conservatives were less unified. Nearly every pair of conservative justices had some disagreement somewhere in the past two weeks:
Gorsuch disagrees with the other conservatives on the immigration case. Barrett disagrees with the other conservatives on the trademark case. Roberts disagreed with the remaining conservatives on Native American healthcare. Thomas disagrees with the Alito and Kavanaugh on the bankruptcy case. That leaves only Alito and Kavanaugh who didn't really disagree at all these last two weeks.
Anyway, now to what I had written:
Two days of opinions, this last week, in six cases. I've commented on the one about mifepristone here—in short, the doctors trying to get it removed from the FDA had no standing, that is, nothing that made them eligible to bring their case, no harm done, no remedy, etc.
As to the others:
Thursday's cases were all 9-0, at least in judgment, but only the above was truly unanimous; the others had some form of disagreement.
I had a bit more time, so I wrote more.
Starbucks Corp v. McKinney
Thomas wrote the opinion and everyone except Jackson signed on. Jackson filed an opinion which agreed with part of what they said, but had more to say, and I think, disagreed with what the practical outcome should be, despite agreeing on the court's action. That is, Jackson is "concurring in part, concurring in the judgment, and dissenting in part."
That's opaque, so let's get into it.
The case is between Starbucks and the National Labor Relations Board (NLRB). Some starbucks workers tried to unionize and called in a news crew to support them. Starbucks fired them. The NLRB was contacted, who filed a complaint with Starbucks, and filed a §10(j) petition (of the NLRA) asking for a preliminary injunction (that is, until the actual judgment) making Starbucks reinstate the fired employees. Notably, the judgment will be by the NLRB itself. The question is how exactly that petition should that be handled.
§10(j) authorizes a district court "to grant … such temproary relief … as it deems just and proper."
Courts follow two sorts of tests: a two-part test, used by the 6th circuit, or a four-part test. The two-part test is peculiar to the NLRA, and asks whether "there is reasonable cause to believe that unfair labor practices occurred" and whether granting the injunction is "just and proper." Note that "reasonable cause" is kind of broad—you don't actually have to think that they're right, this just requires that it's not "frivolous". This also seems to be derived from the statute of 10(j), as listed above.
The four-part test is from for preliminary injunctions more generally. They cite another SCOTUS case here, which, I think, applies to preliminary injunctions more generally. What this requires is that they are (1) likely to succeed, (2 )to suffer irreparable harm unless granted such a preliminary injunction, (3) "that the balance of equities tips in [their] favor", and (4) "that an injunction is in the public interest." Note especially that "likely to succeed" is a good bit more stringent than the previous "reasonable cause to believe," and "irreparable harm" than "just and proper."
Thomas argues that section 10(j)'s "just and proper" phrase isn't establishing any other standard than the already accepted one, and so they should use the four-part test.
But the board, and Jackson, yield this. Where the disagreement rests is how those should be applied. Thomas addresses this in II-B, but first we'll turn to Jackson's dissent, on the same topic
Jackson argues that, from Hecht Co. v. Bowles, the courts must take into account the judgment and intent in the act from Congress. (This act was also cited by Thomas, but to a different end.) Jackson argues for a two part-standard to decide how the court should judge: first, "whether Congress has clearly displaced courts' equitable discretion," and second, "if no such clear statement exists, we evaluate how that discretion should be exercised in light of Congress's choices in the NLRA." She agrees on part 1, the question is on part 2, which she thinks the majority has hardly addressed.
Jackson thinks three of the four factors follow straightforwardly: for irreparable harm, that the interim relief is necessary to remedy the violation of labor rights. For balance of equities, they may consider harms to (in this case, Starbucks), but not its "desire to continue engaging in an alleged violation of the NLRA." For public interest, they defer to Congress in issuing the NLRA. Only the likelihood of the case's success remains. But in this case, it is the Board itself which issues the judgment, and requesting the injunction is a pretty good sign of what it's going to think in the actual judgment, especially since the NLRB doesn't ask for many injunctions, and since the board is granted quite a bit of deference in the appeal.
Okay, that's Jackson, now back to Thomas. He says that the Board actually thinks what the Sixth Circuit is doing is about the application of the statutory criteria. He argues that the reasonable cause standard goes well beyond what's in the traditional criteria, as "likely to succeed" is far more of an evaluation than "reasonable cause to believe." Then, in one paragraph, which is, as far as I can tell, practically the only one actually dealing with what Jackson is asserting, he states that "none of the views advanced in a §10(j) petition represent the Board's final position—they are simply the preliminary legal and factual views of the Board's in-house attorneys."
I don't know what I'm talking about, legally speaking, so I could be off-base, but he didn't explain that at enough length for me to be convinced that Jackson is wrong—if the NLRB is judging the case after the NLRB submits an injunction, then it seems reasonable enough to think it'll win on the merits. I'm not used to siding with the 1 in an effective 8-1 where the 1 is Jackson. Perhaps if I misunderstand this in some respect, it'd be great if any of you who are more knowledgeable could clear it up.
Practically speaking, this doesn't seem like it matters very much in the specific context that it's applied in. 14 injunctions filed per year doesn't seem like much, though I imagine that it could matter more if some of those are large in scope. I can't speak to whether there will be any larger effects regarding willingness to defer to the judgment of agencies.
Vidal v. Elster
Also 9-0 in judgment, but quite the mess in terms of who's with whom.
So, all in all, six different positions, considering the opinions together. But really, it's more like 2, the men versus the women.
The case regards the matter of trademarks. Steve Elster sought to register the trademark "Trump too small," (referring back to the Rubio comment in one of the 2016 debates) and was refused, because the Lanham Act prohibits registration of a trademark that "consists of or comprises a name…identifying a particular living individual except by his written consent." Elster claims that this restriction, as a content-based restriction, violates the first amendment. The whole court agrees that it doesn't but has some substantial disagreements over why, exactly.
First, to Thomas's opinion (and I'll break them down a little further, because of all the partial concurrences).
In section I (Signed onto by all the conservatives, including Barrett) Thomas mostly just says the same things as I said two paragraphs ago, but at more length, and with a little more detail. Since he'll get into the detail later, I see no reason to look more.
In II–A (Also agreed upon by all 6), Thomas lays out the first amendment claim. Essentially, (by precedent) government content-based regulations are presumptively unconstitutional. Viewpoint discrimination is distinguished (by precedent) as a particularly bad kind of content discrimination. The court's already agreed in 2017 and 2019 that viewpoint-based discrimination, such as the Lanham Act's ban on disparaging trademarks and on immoral/scandalous trademarks were violations of the First Amendment, were unconstitutional. The names clause doesn't discriminate on viewpoint.
(I'll note here that my instinctive reaction to trademarks is backwards to that of the court—they feel more like prohibitions on speech than a case of speech themselves to me, but the court protects with the first amendment registering trademarks as a sort of speech.)
In II-B (also agreed on by all 6), Thomas considers the constitutionality of content-based but viewpoint neutral trademark restrictions.
Thomas begins by saying that there should not be heightened scrutiny here, most importantly because they have always coexisted with the First Amendment. Trademarks have been around from before the founding, going back to English law. Their purpose was to mark the manufacturer. The first federal trademark law was in 1870 (before that, purely states), and included some content restrictions (as did a SCOTUS case), which didn't change with the Lanham Act in 1946. They always involve content restrictions, including, for example, barring the registration of a trademark that is likely to cause confusion with another trademark. Thomas argues that because they have always coexisted with the first amendment that therefore there should not be heightened scrutiny. Further, content-based restrictions are inherent to trademarks more generally, as prohibiting confusion over the manufacturer requires looking to the content of the mark.
Thus far, Barrett signs off on it. In II–C, she departs, leaving us with five justices. Here Thomas chooses not to give a framework as to when content-based trademark restrictions are permissible, but chooses instead to look at history and tradition. It is for this, as we shall see, that he gets excoriated by the defense. Anyway, onto the history of name restrictions. Because people own their own names, trademarking names, even their own, was illegal (consider: there is more than one John Smith, so a ban on using it merely because another had the same name, would be a problem). Trademarks could contain one's name, though, if they also had other content. Originally, this allowed others with the same name still to use it (see, for example, SCONY's Faber v. Faber in 1867). The Lanham Act is to be seen to be incorporating existing trademark law, not making up a new one. The names clause serves to help identify the source, and to protect the markholder's reputation, by prohibiting the use of the name of another without permission. And no one has a "first amendment right to piggyback off the goodwill another entity has built in [that entity's] name."
Thomas concludes that there's a tradition of resisting trademarking of names, coexisting with the First Amendment. He declines to develop a comprehensive theory. Yes, nearly his sole argument in this opinion is that there's a history to it, therefore it's constitutional.
In part III, Thomas briefly addresses Barrett and Sotomayor, arguing that their analogy-based approaches are bad. He is joined in this only by Alito and Gorsuch, Roberts and Kavanaugh having dropped out. I'll return to this later. Part IV is a summary.
Kavanaugh's concurrence (joined by Roberts) is very short, one nine-line paragraph, only adding that such a content-based trademark restriction may well be constitutional even without the history backing it up, and that can be addressed in the future.
Now to Barrett's opinion. Kagan joins in its entirety, Sotomayor joins as to parts I, II, and III–B, and Jackson joins as to parts I and II. She disagrees that history and tradition settle the constitutionality for two reasons: first because the history doesn't suffice to match the names clause, and second, because the court never explains why the whole look for predecessors of the clause is the right approach anyway. Barrett prefers to adopt a standard.
Again, I'll break it down by section, because of the partial endorsements. In Section I (agreed by all four), Barrett begins by framing the constitutional issue as that content-based prohibitions are generally prohibited because they work to drive ideas or views out, but there may be some cases where there's no realistic possibility of suppression of ideas (citing precedents). Content-based trademark restrictions are not presumptively unconstitutional. It's always been content based. For example, trademarks merely describing a quality of an item were prohibited, as other manufacturers should be allowed to use them—that's a content-based rule. Barrett explicitly mentions the incorporation of the first amendment in 1868, which it seems to me, the majority really ought to have done, and agrees that content discrimination was inherent to "the very definition of a trademark" at that time. Hence content-based trademark rules have been needed historically. They've also coexisted with the free speech clause because they do not suppress ideas, and even can help protect them, by preventing things that shouldn't be, like the word "potato" from being trademarked. (example mine, sentiment hers)
In section II (still agreed upon by all), Barrett turns to decide how to judge this. She follows an analogy (proposed by the solicitor general) to limited public forums, when government allows speech on its property, but in some restricted manner. Rules restricting speech in limited public fora are judged based upon "whether they are reasonable in light of the purpose which the forum at issue serves." She thinks that though trademarks are not limited public fora, it's an apt enough analogy. Therefore, "content-based criteria for trademark registration do not abridge the right to free speech so long as they reasonably relate to the preservation of the markowner's goodwill and the prevention of consumer confusion," and therefore, if it helps to serve as source identifiers. The names clause passes.
Before we get to section III (where Barrett addresses the Court), let's return to Thomas' thoughts on Barrett. He comments in two places: in a footnote in section II, and in section III. For the time being, only section III is relevant. Recall that section III is only Thomas, Alito, and Gorsuch, not the opinion of the court. Thomas argues that she doesn't justify why that makes sense, merely says that it is "apt," and that the rule is about fora, specifically, and that this is not a forum, and so as there is no analogous forum, it is hard to see why such a test should apply. (Barrett, in response, notes that she didn't say it was a forum, just analogous in that they form content-based restrictions, and states that Thomas ignores her reasons for drawing the analogy.)
Now to part III. Here, Barrett addresses the court's methodology, stating that she does not think the historical record suffices. In III–A, with Kagan alone, she argues that the history does not support what the majority does. Barrett is not convinced that the common law provides protection to someone seeking a trademark including someone else's name. She cites the SCOTUS case Thaddeus Davids Co. v. Davids. Mfg. Co. from 1914, where a "fairly complete" list of invalid marks are made, among which is not listed any names-clause analogue. Further, the sources cited in that case are against enforcing a trademark against individuals with the same name, not prohibitions on names without permission more generally. Barrett argues that the names clause prevents uses of names that may have been permissible under common law, citing several cases that allowed the use of names even of living individuals in the right case, such as Bismarck (because he was famous. The trademark was not to pretend the product is made him). The legislative history backs up that it was not merely common law, but meant to exclude cases like Bismarck, or "the Duchess of Windsor for brassieres and ladies' underwear" that might otherwise be permissible. (Thomas argues that the names she cites are not applicable, being dead, or already generic terms. Barrett rejoins that the cases explicitly allowed for living individuals, and in the case of Bismarck, he was alive at the time.)
In III–B, where Sotomayor joins back on, but not Jackson (and Kagan remains with Barrett), Barrett argues that tradition should not be the proper bar, even if it should be yielded to in some cases for purposes of stare decisis (that is, not changing up the law on everyone for minor reasons). She argues that the majority does not treat the history itself merely as "a persuasive data point," but as the constitutional argument itself. Rather, the court should articulate principles. Her preferred takeaway from history is that trademark restrictions have "been central to trademark's purpose" and "have not posed a serious risk of censorship," and states that this is a good way to think about whether such restrictions work with the first amendment.
Thus far Barrett. Now to Sotomayor, who is joined by Kagan and Jackson. (Simple, for once.) This is another methodological disagreement. Sotomayor argues against the use of looking to history and tradition in general. She points to Barrett's disagreement as indication of the uncertainty of such an analysis, and that the justices are looking at these without them having been raised by litigants, and that nonhistorians are doing historical analysis. She argues further that usages of it in Bruen are problematic, as it has led to confusion. Sotomayor would also prefer "a doctrinal framework drawn from this Court's First Amendment precedent," with the standard being that trademark restrictions should be viewpoint neutral and reasonable for the purpose of trademarks. Sotomayor, in accord with Barrett, allows some use of history, such as to understand what the purpose of trademarks is. Sotomayor argues that the reason that registration restrictions is fine with the first amendment is that failing to get a trademark registered is not a restriction on speech, merely the withholding of a benefit. She argues that there are several cases which back this up, including limited public forums (yes, she uses that plural, not the latin plural. Barrett used no plural, so I said fora due to nerdiness) and monetary subsidies. Those precedents permit imposing a "resonable, viewpoint-neutral limitation on a state-bestowed entitlement." (Thomas, in section III thinks that these are too different; Sotomayor thinks that the underlying principle is still useful.) Because here, if a mark is ineligible for registration, it can still be used anyway (but not restricting the use of others) it's not a problem. It only does not confer exclusive rights to speech, it does not restrict that speech.
My thoughts: I found the (in effect) dissents quite compelling, and am not a fan of the majority's use of historical analysis as sufficient. One interesting thing to think about is what factors may have led some justices to sign onto parts and not onto other parts of opinions. I assume the difference between Barrett and the liberal justices in whether they agreed in part with the main opinion had to do with whether they wanted to show solidarity. Perhaps Barrett didn't sign onto Sotomayor's due to the more oppositional tone, as well as, perhaps, that it seems slightly harsher towards use of history more generally? I imagine Sotomayor either didn't want to engage in any historical analysis (by endorsing Barrett's), or agreed with Thomas that it wasn't sufficient. I'd guess the former. No idea why Jackson declined to sign onto Barrett's part 3. I assume Roberts and Kavanaugh chose not to sign onto Thomas's part three because they didn't want to reject the tests of Barrett and Sotomayor, merely not sign on to them on this occasion?
Now to Friday's cases.
United States Trustee v. John Q. Hammons Fall 2006, LLC
6-3 Opinion by Jackson, joined by Roberts, Alito, Sotomayor, Kagan, and Kavanaugh. Dissent by Gorsuch, joined by Thomas and Barrett.
In Siegel v. Fitzgerald, the supreme court ruled that differing bankruptcy fees in districts governed by the U.S. Trustee Program vs. the Bankruptcy Administrator Program is unconstitutional (yes, it's weird that there are two types of districts). This case is about what remedy those harmed should have. Specifically, those who paid the higher amount when others paid the lower amount.
The majority rules that the only remedy is to be equal prospectively. They argue that the harm is inequality, not high fees, and that such a harm may be remedied in three ways: reimbursing those who overpaid, exacting more now from those who underpaid, or only changing things prospectively. Jackson then turns to Congress' intent as to how the remedy should occur (citing precedent). Since Congress wanted to raise fees in order to keep the U.S. Trustee Program to be self-sustaining, they would not have wanted something financially burdensome upon the program, and so remedying it would plainly be opposed to congressional intent. Further, such a remedy would make the disparity worse—if some are rewarded the remedy, then that would merely increase the amount, unless practically everyone, as only 2% of the bankrupt got to pay lower fees. Then, turning to the question of whether congress would want to impose higher fees, they argue that it did not, looking at its subsequent decisions, and that it would have pretty negative consequences. Hence, only prospectively. The remainder of the opinion responds to the dissent, so I'll turn to that first.
Gorsuch's dissent is rather up-in-arms. (And in turn, Jackson's opinion cites Gorsuch's own language that the dissent is "just that."—i.e. only a dissent.)
The dissent argues that Hammons should be entitled to a refund: the U. S. Trustee is agreed to have promised it, and Congress is agreed to have appropriated funding for refund, it is agreed that the suit is timely. Further, when "there is a general right to sue," but no specified form of relief, courts may use any remedy. It's long been the case that the proper remedy for overpayment is to pay them. They argue that this is no remedy at all—the past harm is not remedied. The dissent also casts some doubt on the whole process of imagining what Congress would do. Gorsuch also thinks that congressional intent is in favor of a refund, looking at the statutory text, where the program is authorized to provide refunds. Further, he characterizes it as a bait-and-switch, by promising the the refunds by standard procedures, and now denying any such possibility, and that that bait-and-switch violates due process. Gorsuch also attacks the argument that it would be disruptive as a turn to policy, but "not how remedies work." It's always cheapest not to give remedies.
Okay, now the majority, addressing the dissent: They argue that the dissent misunderstands the problem: to remedy a disparity, not to pay damages. Further, turning to congressional intent for a refund, it's passed regularly and therefore (only applies to ordinary situations, not ones involving 326 million? This is my best guess, it's not quite explicit.). And third, the government didn't really make a promise, but merely that it would wait to remedy until exhausting all appeals.
Jackson argues also that the dissent is wrong in its understanding of due process—she doesn't think the tax cases apply here, and there was a meaningful chance, which satisfied the due process clause.
I think I find the dissent more convincing, but am not sure. A lot would turn, I think on where precisely the harm in nonuniform bankruptcy rests: is it upon those who got a worse deal, or is it something ethereal upon the whole system?
Campos-Chaves v. Garland
Written by Alito, joined by Roberts, Thomas, Kavanaugh, and Barrett. Jackson wrote the dissent, joined by Sotomayor, Kagan, and Gorsuch.
This case is about deportation hearings. Aliens have to be provided with written notice. There are two varieties: in paragraph 1, it describes the notice to appear (NTA), and in paragraph 2, a notice saying the new time and place. Here, there were three individuals each of whom got notices that were defective, in that they had TBD or similar written in place of the time. They were subsequently given a notice saying what the time of the hearing was, but didn't show up. The defendants argue that they failed to be served the proper notice, and so should not be removed from the country.
Part of this has to do with the word "or". The statute says, "did not receive notice in accordance with paragraph (1) or (2)." Unfortunately legal statutes don't have parentheses, so such combinations of ors and negatives tend to be ambiguous. Alito argues that a notice of either variety counts. More specifically, it has to be whatever notice is relevant—whichever one is connected to the hearing missed.
Alito also interprets the phrase in the statute of changing the time to include the change from TBD to some concrete time.
Jackson disagrees, seeing this as giving the government a pass for writing incomplete and therefore invalid NTAs under paragraph 1. Because time and place is a necessary part of the notices to appear, failing to include them makes them not count under paragraph 1. But a paragraph 2 notice should be dependent upon a paragraph 1 notice: 2 only describes notices changing the time and place, which Jackson thinks should mean that there is already a valid notice to appear before 2.
Jackson also argues that the majority's understanding of the word "change" is a bit unreasonable: the passage is clearly talking about replacing one time with another.
I think I found Jackson more compelling—it's at least a little unintuitive to have a valid notice dependent on an invalid one. The court's remedy (show up and mention the lack of proper notice) helps, at least.
As a side note, it's pretty funny to see Alito using the word alien at every possible opportunity, whereas Jackson uses noncitizen as much as possible (and maybe even bracketed alien out, in a footnote? I didn't check.).
Garland v. Cargill.
Thomas writes the opinion, which the other conservatives join. Alito writes a one-page concurrence. Sotomayor writes a dissent, which the remaining justices join.
The National Firearms Act defines a machinegun as "any weapon which shoots, is designed to shoot, or can be readily restored to shoot, automatically more than one shot, without manual reloading, by a single function of the trigger." The question: are bump stocks machineguns? Thomas argues no. This used also to be the ATF's position, prior to the Las Vegas shooting, but afterward they included bump stocks. The core of Thomas' argument is as to what the words "a single function of the trigger" refers to. He argues that it refers to the trigger of the weapon, well, triggering once. (And he goes through, with diagrams, how exactly a trigger works.) Bump stocks do not change that there is one pull of the trigger for each shot. The finger pushes the trigger once for each shot. They argue, as a different route to the same point, that bump stocks do not cause it to happen automatically, as the forward pressure required is an extra thing in such a way that it is not automatic.
Alito mentions that the ATF should not have changed the rules—rather, congress should. And that the Las Vegas shooting doesn't change the meaning, merely reveals that regulation of bump stocks is probably a good idea. He agrees that the original congress would have wanted bump stocks banned, but denies that they did.
Sotomayor on the other hand argues that "a single function of the trigger" should not refer to how many times the lever of the gun moves, but rather its relation to the user, whether it's a single pull to the user. And in this case, as bump stocks allow for the use of them in a single motion, it should be considered a single function of the trigger. the relevant quality for a trigger is the relation not the user, not to the gun.
I found the dissent in this case more compelling than I expected, given the political valence. I'm not sure who I'd agree with, if I had to choose. But this case is essentially guaranteed to make liberals mad. Not good for trust in the court.
Sotomayor's argument sounds compelling, except that it's not at all how bump stocks, as banned by the rule in question, work. Accelerators with springs (or rubber bands or even shoelaces) were machine guns before the new rule. The bump stocks in question here do not and can not allow continuous fire in a single motion, because they simply have no ability to store energy between cycles of the action.
To operate, the shooter must push the rest of the gun forward from the stock, after each shot, bringing their finger back into contact with the trigger. There is a 'single motion' only in the sense that people can more readily apply forward pressure that can be overwhelmed by recoil than they can make fast squeeze-and-unsqueeze motions.
And that distinction was present even shortly after the NFA's introduction: then as into the 1950s and even now, hand-cranked gatling guns remain legal, while gas- or electric-operated ones were not. They can fire pretty fast, and there are points in their cycle where the shooter is 'just' continuing the spinning motion. But you can't make a heap from grains with the magic of 'action', here: there is a shot, and if the shooter disappeared or petrified by magic at that moment, the gun would stop.
((I'll point to a big frustration I have with the left side of the bench, here. Sotomayor cites and summarizes one case as "United States v. Camp, 343 F. 3d 743, 745 (CA5 2003) (upholding classification of fishing reel attached to a rifle trigger that, upon activation, repeatedly operated the curved lever of the rifle).". Which would be pretty strong evidence in favor of a long history of prosecuting gatling-like devices were that the case! But actually look at it and you get something drastically different [emphasis added]:
Yes, technically a fishing reel was involved. But come on. Camp wouldn't 'activate' the fishing reel; Camp activated a motor attached to the fishing reel. And indeed 'gat crank' devices that are little more than a better-machined fishing reel, without a motor, were still legal under the bump stock rule.))
More options
Context Copy link
More options
Context Copy link
Vidal's breakdown is... less interesting than it seems from the top line.
This part of a longer and larger conversation on an originalists-versus-formalists-versus-progressives-trying-to-figure-out-a-principle thing, but I don't expect it to take a very memorable part of that.
Garland v. Cargill is... disappointing.
Especially from the left branch. I was kinda hoping for a Caniglia, here: not only was the bump stock ban a Trump act, it just touched on so many matters that should appall the progressive side of the branch, and they still (and it's a pretty nakedly partisan Sotomayor opinion that can't even get the facts right). It's not a Second Amendment case, and it wasn't a Chevron case, just bare statutory interpretation. Can the feds rewrite a law decades later with serious criminal penalties as punishment without involving an actual bill? Does the rule of lenity mean anything, if it doesn't apply where even regulating officials were apparently 'confused' by the text of the law?
I guess on the upside, I don't think even Sotomayor would condone a President unilaterally declaring thousands or tens of thousands of people into federal felons with nothing more than an APA notice, outside of a matter where she doesn't like it. But, uh, that's... not actually a compliment.
Alito signed off on federal laws banning machine guns -- no, he doesn't openly say he thinks it's constitutional, but it's very clearly why he wrote it. Which a) not a huge surprise, guess it's good to have the writing on the wall, and b) invites lower courts handling state assault weapons bans or other more arguable cases to read expansively.
Thomas' opinion is technically interesting (embedded images!) so yay.
But the biggest downside is just the procedural stance the whole thing got to SCOTUS in, and how little any member of SCOTUS seems to recognize that or try to cordon it off from repetition. As far as I can tell, no circuit court actually applied a preliminary injunction, most lower courts found for the government in increasingly-messy text, SCOTUS punted here on Aposhian v. Garland (2022), Gun Owners of Am., Inc. v. Garland (2022), Guedes v. ATF (2020), and even Hardin (I think?) end up in a bizarre indefinite stay. The Trump bump stock ban went into action 03/26/2019.
It's 2024.
Yes, no small number of people had boating accidents, often without owning a boat, and will be doing some impressive magnet fishing for aluminum. But this was a blatantly unlawful regulation, and in almost all of the United States, acting in accordance with that would leave you at serious risk of a long prison sentence for over five years. There's reason all the plaintiffs here were people who'd surrendered their stocks, and they're not alone. You'd be a moron (or hate your dog) not to! The ATF will have destroyed (or 'destroyed' into someone's private collection) any and all it received, no takebacks or cash-on-receipt; manufacturers have been driven out of business or moved into different fields; inertia gained ground.
Even prospective owners should consider, seriously, that all of those takings clause concerns and Second Amendment matters mean, at best, they'll be joining the landlocked boat club, and more likely that they'll be hung out to dry. They're inviting those threats in the future, and likely the near future.
Which is funny for bump stocks, but it's not like this has stuck to bump stocks. There's a fair argument that SCOTUS doesn't, but Aposhian, GOA v Garland, and Guedes all strike here. Guedes even had Gorsuch writing out bad some lower court opinions were. In 2020, he could punt in the hope that other courts would give considered judgement -- "provided, of course, that they are not afflicted with the same problems." Today, we know exactly how that turned out, and what cost it took to receive other courts making the same fuckery with Chevron.
Campos-Chaves v. Garland is... very Gorsuch.
The nexus for this case is that various government groups have been sending Notices to Appear with a Date of TBD, then sending the actual date later. The statute requires illegal immigrants to have a Notice to Appear with a specific date included (along with other information that seems to have actually been included) or a notice updating them after a change in proceedings.
This isn't as arbitrary a difference as it sounds at first glance -- illegal immigrants are more likely than citizens to miss individual papers, or be delayed receiving them, or have trouble with legal paperwork. And Campos-Chaves didn't appear before an immigration judge in 2005; if he was properly ordered removed at the time, he's still subject to removal; otherwise, he's eligible for discretionary relief from deportation (that he will almost certainly receive) under the 'continuous presence' rule.
((Though this does make Jackson's displeasure that the federal government did not behave better after SCOTUS gave notice in 2018 and 2021 rather uncompelling. His co-respondents aren't much better, here; Signh's NTA was issued in 2016 and repeatedly rescheduled, once due to Sighn's non-appearance, and Mendez-Colín was 2001 and he showed up to several immigration court appearances until it was clear he wasn't going to win (and was removed, probably 2005ish?).))
The law is written poorly, and I can see the potential for abuse: the strictest literal version would allow the state to send just a date and time, and not any of the other info, which has significant due process concerns. (As a pragmatic matter, it's not entirely clear why the government isn't just issuing the full I-862s with a rescheduling checkbox. Maybe privacy?)
But it doesn't seem like anyone has claimed the government has, or even wants to; both these cases and previous ones Jackson highlights seem more trying to get illegal immigrants out of custody quickly, even where the final hearing date isn't available. And from a pragmatic perspective, it's very far from clear that it would be better for ICE to issue I-862s with a knowingly false date, only to give a 'real' one later: it wouldn't change the stop-clock stuff, and obviously increase confusion. There are even some marginal cases where the government's arguments would lead to longer time being run before the 'stop-clock', compared to that counterfactual, though I doubt any would matter.
Jackson's position seems to be based on the argument that the update notices are always invalid without fully complete initial NTAs, and that they can't be said to have been issued at all. And at first glance that's not a crazy pragmatic matter. But it's a textual nightmare; it means the statute about update notices qualifying never applies.
Starbucks
Jackson's dissental is mostly trying to argue in favor of vastly increased deference to the NLRB -- while she says concurring in judgment, it's very hard to see her version of Winters as going against the NLRB, here. Probably under the assumption that, like a lot of Breyer's later work, it'll get cited as by lower courts as often as the opinion itself.
It's not a crazy argument -- Congress does often limit judicial review of some agency decisions, and it might even be reasonable in the NLRB's context -- though it is hilarious in contrast with her anti-Munsingwear takes. Not necessarily wrong, though.
The thing to remember here is that the Supreme Court does not want you to have guns. Even the six are elites and elitists. (OK, maybe not Thomas). They're appalled at the idea of guns in the hands of ordinary people. But they have a peculiar attachment to the high-class Constitution debating society they're in, and they have a side, and that side is both pro-gun and sour on expansive regulatory powers. So they want to make the point that the Constitution does support gun rights and not expansive regulatory powers, but also ensure the actual system of government restricts guns by any means necessary. Thus, decisions with loopholes that they refuse to plug, a refusal to provide any interim relief, and slapping down the Fifth Circuit when it attempts to apply these academic decisions as if they matter.
More options
Context Copy link
It's not that it wouldn't apply, it would just be that it would only apply if the time/place had to be changed (from another time/place), right?
Maybe? I'm not sure how: the dissent's take is pretty explicitly that an update notice requires a complete I-862, and Niz-Chavez is pretty explicit that the stop-time rule only applies when a complete I-862 is delivered. And I'd be pretty willing to bet that a complete I-862 without a proper update notice for the real hearing's date wouldn't be any more appealing to Sotomayor (correctly, imo, and maybe even to the majority here). That sounds a lot more like an "and" than an "or", and even that would turn the statute into a necessary authority for an immigration court to reschedule (or serve multiple) hearings, which is pretty far from typical interpretation.
It would be an "or"—whichever, (1) or (2), applies to the relevant hearing.
Mendez-Colín appeared for (multiple) previous hearings and was issued an order of removal after failing to appear at a hearing with an updated notice, and the dissent (and unpublished 9th Circuit opinion) didn't distinguish his case, so that doesn't work.
More options
Context Copy link
More options
Context Copy link
More options
Context Copy link
More options
Context Copy link
More options
Context Copy link
As far as I can tell, most (thoughtful) conservatives would agree with you that the conservative justices are more principled and unbiased. They just see that as a bad thing since they perceive the liberal justices as defect-bots in an iterated prisoner’s dilemma, and it pains them to see the conservatives cooperating with them. These conservative commenters complain about ideological unreliability because, not being familiar with the field of game theory, they lack the vocabulary to couch their objections in other terms.
I don't think the liberal justices are insincere, exactly. (Actually, I'd need to go back and look at Dobbs to see whether I'll stand by that.) I think it's just closer to turning to asking what Congress/the Constitution/former versions of the court would want, which in practice are interpreted as benevolent entities in accord with their own opinions.
I think the liberal justices, generally, take the underlying sentiment of the Preamble seriously, and see the rest of the Constitution as the means to the ends laid out above. The Supreme Court is one of the major branches of the government thereby established, and so it ought to carry its weight in pursuing the goals of the Preamble. Therefore, the Court ought to promote and defend good policies, and reject bad policies. After all, in doing so, it isn't making policy, but merely exercising judgment to ensure that the popular branches are properly oriented to the "general Welfare."
I'd go so far as to say that about half that logic is uncontroversial, but the remainder draws in some premises that are not shared.
The liberal justices largely follow the dominant philosophy of the American legal profession--legal realism. This philosophy was formulated over a hundred years ago, in its rejection of the dominant mode of thinking at the time, which the realists called 'legal formalism.'
The formalist frame was that every case had an objectively best outcome, determined by applying the governing law to the operative facts. Sometimes judges would fail in this task, and sometimes even the best outcome wasn't very good--or even good at all--but there was a best outcome to be found.
The realists rejected this frame, accusing the formalists of feigning their roles as a disinterested third party merely applying law to facts mechanistically, and instead smuggling in their own policy preferences in determining outcomes. In fact, the realists claimed that this was inevitable: no matter how much the formalists claimed to be acting in good faith in trying to be neutral arbiters, they were actually just another set of partisan actors on the stage of national politics. Since neutral disinterest was only a convenient mask for the formalists, it's all politics anyway, and the realists might as well pursue their own policy preferences unhindered by feigned neutrality.
The core of Justice Scalia's judicial philosophy was a rejection of legal realism, and a return to the narrow conception of the judge's role commonly understood beforehand. While the realists correctly pointed out that no judge could consistently be perfectly disinterested, the ideal of neutrality was too important to jettison, and it is the obligation of every judge to stick as close to that ideal as possible. Judges are not permitted to reject bad policy solely on the basis of its badness; they are only allowed to overturn any policy--good or bad--if it is inconsistent with a controlling authority, and properly presented as part of a real 'case or controversy.'
More options
Context Copy link
More options
Context Copy link
The liberal justices intend for their decisions to make a difference in the real world. The conservatives, so far as I can tell, are merely engaged in a legal debate society. They'll give the liberals a win out of sportsmanship if they come up with a clever enough argument (e.g. Bostock or McGirt v. Oklahoma) And while they're very insistent on making their points about the law, they'll never engage in the steps necessary to get those points translated into changes on the ground; they don't bother taking follow-up cases to slap down lower courts who didn't get the message. Though they ARE fond of slapping down the Fifth Circuit which does take conservative principles a little too seriously.
More options
Context Copy link
And sure they are right if the outcome is limited to the decisions at hand. But Scalia once talked about how he writes his dissents for law students since they are the ones who really have to grapple with trying to understand the law.
Regardless of how liberal or not liberal they are, Scalia heavily influenced numerous lawyers to move towards textualism.
My contention (maybe my cope) is that being honest jurists produces better thought out opinions. Better opinions have a real influence on the next generation. So you end up winning over time.
I think I share that hope/cope. IMO, partisan hacks just aren't going to leave a lasting impression on the judicial culture. Whereas Justices who focus on principled outcomes, like Scalia with his textualist approach, have an undeniable impact (Kagan famously said "We're all textualists now," which has not proved as true as I could wish, but the trend does seem to be in that direction--at least, very few opinions on either side of the Court in recent years have been as nakedly outcome-oriented and political as the decisions of e.g. the Warren court).
More options
Context Copy link
More options
Context Copy link
More options
Context Copy link
Did you see this opinion piece just two weeks ago that mathematically broke down voting patterns? They use some data to show there's a bit more of an L-shaped 3-3-3 split on the court (with they consider to be both an institutionalist as well as ideological axis), and also mention that not very many of the cases overall show the traditional 6-3 explicitly partisan split vote. In fact only 5 of 57 cases landed this way. Related, they also argue that how "important" and "divisive" a case is (per the media) actually turns out to be even more highly subjective than commonly thought.
NB: split and analysis was from the 2022-23 session
NB2: The groupings they found are Sotomayor - Kagan - Jackson; Roberts - Kavanaugh - Barrett; Alito - Gorsuch - Thomas
Some friends and I discussed this and propose the following improvement: 3-3-2-1. Keep the groups almost the same, except cleave Gorsuch into an idiosyncratic group of one. Thomas and Alito seem extremely compatible, but Gorsuch is the member of the court most often beating his own drum. And of all the conservative justices he's the one most likely to cross over to the liberal side, for reasons conservatives will unusually respect.
Do you think Gorsuch is his own group, or just happens to have a few "pet issues" that he individually feels strongly and deviantly about? I think the article pointed out he often goes his own way in Native American cases, for example.
More options
Context Copy link
Gorsuch is I think the only one formally trained in philosophy. He has a very interesting mind that creates unique opinions. His influence will be profound. Doesn’t hurt that he is a good writer.
I don't think I'll ever forgive him for Bostock, but he's easily the best Justice since Scalia, and as good a replacement as anyone could have hoped for.
More options
Context Copy link
More options
Context Copy link
More options
Context Copy link
Interesting article! This finding in particular caught my attention:
This suggests the pattern I noticed is real, although the size of the disparity is not huge. However, I would still like to see a similar voting breakdown focused only on cases with strong culture war salience. The court decides a large number of cases each term that don't have any obvious partisan ramifications. It may be the case that the justices don't particularly care about ideological conformity in such cases, but are more likely to vote as a block on cases involving controversial partisan issues. And the conservatives and liberals may do so at different rates.
I also dispute the 3-3-3 breakdown presented in the article. The authors put Gorsuch and Thomas (who agree 77% of the time) in the same group, but their chart shows that Thomas is more likely to agree with Barrett (82%) than with Gorsuch, and Gorsuch is more likely to agree with Barrett (82%) and Kavanaugh (80%) than with Thomas, and equally likely to agree (77%) with Roberts!
I confess, I am a hopeless wordcel, so it's highly likely that I've misunderstood the statistical wizardry at play in this chart. However, the numbers they give suggest to me that the Justices' breakdown more like 3-3-1.5-1.5: three liberals who vote together, three conservatives who vote together (Roberts, Kavanaugh, Barrett), Alito, and two Justices who often vote with Alito but don't reliably vote with each other (Thomas and Gorsuch).
Roberts and Kavanaugh definitely vote together more with each other than with Barrett.
More options
Context Copy link
Yeah, I thought it added something unique. Re: "I would like to see a similar voting breakdown focused only on cases with strong culture war salience":
I think they are making the case here that there's some very, very strong selection bias in play when we categorize things as "politically divisive", roughly analogous to "strong culture war salience". In other words, if we only ever describe whether a case is divisive based on the result, rather than the actual case, of course we are going to see a lot of divisive and partisan cases! It's - I think it's kind of like begging the question logical fallacy, yes?
Of course you probably could rate ideological controversy before cases are decided and then look at voting patterns. I think they didn't in this case because they wanted to focus on a time period where the 9 justices were also the current justices, and Jackson was only confirmed in 2022. I agree I would be interested if this type of analysis held up in other previous years with different justices, though it would lack the same generalizability.
More options
Context Copy link
More options
Context Copy link
More options
Context Copy link
I like your writeup.
Hypothesis for your latter observation: there are more conservative justices, appointed over a longer period. I wouldn't be surprised if they have more competition between viewpoints.
But then, I do tend to take weird splits like Campos-Chaves v. Garland as evidence against partisan capture. I want to believe that Court is better modeled as a club of weirdo turbo-lawyers. They obviously aren't immune to mainstream politics, but they play with a rather different set of incentives.
"Weirdo turbo-lawyers" is exactly how I view most of the Justices, with the exception of a few who seem reliably partisan (Alito on the right, Sotomayor on the left; maybe Jackson as well, but it's too early to tell). Thomas in particular holds so many idiosyncratic views at odds with the rest of the Court that he seems like a sort of mad genius: he loves to write these audacious solo opinions confidently attacking well-established precedents, but I often find myself thinking "damn ... he might be right!" after reading them. (For example, he consistently argues that the Establishment Clause is not incorporated against the States; in other words, the Constitution does not bar States from establishing a State religion--see Section II of this opinion). There has been a lot of scrutiny lately over Thomas receiving gifts from Republican donors, with pundits suggesting they were bribes for voting a certain way. Maybe, but Thomas's opinions seem way too weird, and at the same time too carefully-thought-out, to be insincere. And if I was a billionaire trying to buy votes, I wouldn't bother with Thomas--Empirical SCOTUS has a "Justice Power Index," and Thomas is consistently on the bottom because he so rarely agrees with the rest of the Court.
Jackson's starting to have her own windmills to tilt at: the anti-Munsingswear solo dissents and concurrences, and while they have obvious political ramifications (tactically mooting a case after receiving a favorable injunction in lower courts is mostly useful for current progressive goals, if only because SCOTUS demonstratably isn't going to wait before slapping down the 5th Circuit), it's at least a meaningful position with not-crazy-partisan political underpinning. She's not a Thomas or Gorsuch on that (yet!), but it took a few years for Thomas, at least, to grow into it.
I don't like the position, and maybe it's not enough to pull her from the 'reliably' partisan, but not an obvious thing either.
More options
Context Copy link
If I were a rich man trying to keep the flyer a particular way, I might try to find a SCOTUS justice so he doesn’t start thinking “maybe I retire in order to make some real money.”
More options
Context Copy link
More options
Context Copy link
Among whom Gorsuch prides himself on being the most idiosyncratic weirdo.
I think so too. Textualists are supposed to care about the meaning of the statutory language, without worrying too much about "legislative intent." But Gorsuch, sometimes, takes this principal so far that he seems to enjoy finding a perversely-literal interpretation of a statute which everyone agrees the legislature could not have intended. Bostock is the clearest example IMO: according to Gorsuch, the Civil Rights Act's prohibition of sex discrimination also unambiguously prohibits employers from discriminating against homosexual and transgender employees (of both sexes), despite the fact that (in the words of Judge Posner) "the Congress that enacted [the Act] would not have accepted" that interpretation. In fact, Congress had already considered and rejected a proposed amendment to the Civil Rights Act that would have extended its protection to "sexual orientation and gender identity," and (Alito points out in dissent) "until 2017, every single Court of Appeals to consider the question" rejected Gorsuch's reading of the text. According to Gorsuch, treating men and women equally is not important; the Civil Rights Act apparently requires men and women to be treated exactly the same, to the point that you can't fire a male employee for wearing womens' clothing (it's important to note that Gorsuch's reasoning here would apply to all male employees, regardless of their "gender identity."). So, can an employer take action against a male employee--who identifies as a man--who insists on using the women's bathroom? Wouldn't firing that employee be motivated, in part, by the employee's sex, according to Gorsuch's rule? Yet Gorsuch refuses to engage with this inescapable extension of his reasoning, lamely announcing that those cases "are not before us ... we do not purport to address bathrooms, locker rooms, or anything else of the kind."
So Gorsuch, one of the more reliable conservative votes, has on at least one occasion handed a huge culture war victory to the left because (in my uncharitable opinion) he thought it would be impressive to discover a "counterintuitive" reading of the statute. The reason Congress and all those appellate courts didn't interpret the statute the same way is that they just weren't smart enough to find the "unambiguous" meaning of Title VII, unlike the eagle-eyed textualist Gorsuch. Then he refuses to even consider the obvious import of his holding on nearly-identical culture war issues, like sex-segregated bathrooms and changing rooms, because--again--he's one of those elite compartmentalizing textualists who consider only the issues before them, and who are not swayed by irrelevant appeals to unlitigated issues and public policy concerns.
This turned into more of a rant than I intended, but I do think it supports the argument of some right-wingers that "thoughtful" conservative Justices can be a liability, since it only takes a couple of them to side with the defect-bot liberals and inflict huge damage on the right.
I like it! This is excellent elaboration on the shorter summary of the court I had back at the beginning of the year. I think the model I lay out there continues to work pretty well with what we're seeing in rulings, particularly in the two split decisions from Friday. In Campos, I'm sure Gorsuch was very excited to contemplate the possibility of a conjunctive "or".
More options
Context Copy link
One part that I'd add is that we don't really have any such examples of a Gorsuch opinion that's bizarre textual literalism that benefits the right or part of its allegiances.
Maybe he'll prove me wrong -- Williams v. Kincaid in the 4th Circuit is kinda an anti-matter Bostock, where there's absolutely no question that the explicit ADA statute excludes a wide array of sexuality and gender-related stuff, and lower federal courts have decided that Congress must have really 'intended' for this exception to not apply for a wide array of sexuality and gender-related stuff.
Wouldn't put money on it, though.
Perfect example of the use of institutional capture. Congress excludes "gender identity disorders". The (captured) APA drops "gender identity disorders" and replaces them with "gender dysphoria", and the Fourth Circuit says "Oh, that's totes different".
More options
Context Copy link
More options
Context Copy link
Just like rationalists. The biggest problem with rationalist reasoning is the refusal to sanity-check ther results of arguments. Rationalists will draw absurd conclusions like insect welfare or donating one's kidney to a stranger and say "sure, I guess that's right" rather than figuring out that something has gone wrong with their reasoning process if it produces such an absurd result. See also: terrorists who fail at epistemic learned helplessness.
Public policy concerns isn't quite the right way to describe it. That makes it sound like some sort of legislation by reinterpretation like the left does. If the people who created the law wouldn't have wanted the public policy implications of your interpretation of the law, that's a failure to sanity check, that's not public policy in the sense of "I am deliberately inerpreting the law to bring about this public policy".
More options
Context Copy link
More options
Context Copy link
More options
Context Copy link
More options
Context Copy link
More options
Context Copy link