SCOTAL Itch

[Kamilah Hauptmann]

Cool how Brett Kavanaugh today opined how life sentence is appropriate for kids.

[beyelzu]

“If we want to sit here and talk about whether a Supreme Court nomination should be based on a high school yearbook page, I think that’s taken us to a new level of absurdity.” In fact, lawmakers that day weren’t deciding whether or not to confirm Kavanaugh to the highest court in the land based on “a high school yearbook page” but over credible allegations of sexual assault, which he denied. Nevertheless, Kavanaugh’s position that day was that people shouldn’t be held accountable for things they do as minors. But what he apparently actually meant was that he shouldn’t be held accountable for things he allegedly did as kid, while others deserve life in prison without the possibility of parole.

Kavanaugh is such a piece of shit.

According to NPR, Thursday was the first time in nearly two decades that the Supreme Court “deviated from rules establishing more leniency for juvenile offenders, even those convicted of murder,” noting that the court, “primed by research that shows the brains of juveniles are not fully developed, and that they are likely to lack impulse control—has issued a half dozen opinions holding that juveniles are less culpable than adults for their acts.”

What a fucking shitshow.

6-3 ruling, even Roberts was on board for this clusterfuck

[Kamilah Hauptmann]

emails. there were emails.

[BrotherMan]

Of course that petulant bastard wouldn't give a shit about anyone who wasn't actively doing something for his benefit.

[Ari]

I presume we’ll see more rulings that are just straight up cruelty. Both the war on drugs excuse and maybe even the school shooter excuse for bumping law enforcement into black kids enough to put them on a path to prison are being reduced, so might as well just come right out with it.

The end goal is to ban abortions, force women to have children and then immediately locking those children up for life. Preferably while also performing free labor. Which sounds like something familiar, I can’t quite put my finger on.

[Kamilah Hauptmann]

The Draft is also still in place. It's called poverty now.

[Sock Puppet]

Originally Posted by Ari

The end goal is to ban abortions, force women to have children and then immediately locking those children up for life. Preferably while also performing free labor. Which sounds like something familiar, I can’t quite put my finger on.

That's entirely possible, but I can't help wondering whether the right's faithful shepherds are getting nervous now about how to hang onto their wedge issue. I won't be entirely surprised if this SCOTUS actively avoids having to rule definitively on abortion, saber-rattling to the contrary.

[BrotherMan]

Originally Posted by Ari

The end goal is to ban abortions, force women to have children and then immediately locking those children up for life.

Locking them up for life and/or profit, whichever is longer.

[beyelzu]

The Supreme Court said on Monday it will hear a challenge to a Mississippi law barring almost all abortions after 15 weeks of pregnancy, setting up a clear opportunity for the court’s new 6-3 conservative majority to reexamine Roe v. Wade, the 1973 decision that established the constitutional right to abortion.

In a just world, this would be the Supremes knocking down a bunch of laws that were passed by regressive assholes mostly in the Covideracy that were obviously unconstitutional. I'm not optimistic.

[Stephen Maturin]

Of the three issues Mississippi presented, the Court granted cert on only one:

Whether all pre-viability prohibitions on elective abortions are unconstitutional.

It would be ridiculously easy to answer that question in the negative, uphold the Mississippi law at issue, and still claim the Roe/Casey framework remains viable. Will that happen?

At least 5 justices (Thomas, Alito, Gorsuch, Barrett and Kegs the Rapey Alcoholic Manbaby) believe that substantive due process, the legal theory underpinning the right to choose, is absolute garbage. It's not at all necessary to overrule Roe/Casey to decide this case in Mississippi's favor. However, I fully expect Thomas, Barrett, Kegs and probably Alito to vote for a full overrule anyway. It's just a half-educated guess, but I suspect Roberts and Gorsuch will opt against overruling, but neuter Roe/Casey sufficiently to uphold a near-total ban after 15 weeks.

Thus, at best, the right to choose is going the way of Miranda v. Arizona. That case is still "on the books," but SCOTUS started regretting the decision almost immediately and has long since lopped off Miranda's testicles, pureed them in a blender, loaded the pureed ball juice into a rocket and launched it toward the center of the solar system, where lightning bolts from the sun will annihilate it utterly. Miranda "exists," but in such an attenuated form that it's virtually impossible for law enforcement to commit a Miranda violation. So will it be with the right to choose.

The opinion of Judge Carlton Reeves, the federal trial court judge who permanently enjoined enforcement of the Mississippi statute at issue, is a thing of beauty. One of the state's arguments was that the statute isn't really a "ban" but rather a "regulation" that's constitutional because it doesn't "unduly burden" a woman's right to choose and was passed to further the legitimate state interest of protecting women's health. Judge Reeves said nope, it's a ban, and pre-viability bans are unconstitutional. In a footnote addressing the state's "women's health" bullshit, the judge wrote:

The judiciary "retains an independent constitutional duty to review factual findings [of legislatures] where constitutional rights are at stake." In Shelby County v. Holder, for example, the Supreme Court found that § 4 of the Voting Rights Act was unconstitutional, despite a 15,000-page legislative record. The Court's view of American history led it to conclude that "our country has changed" and Congress's legislative findings failed to "reflect[] current needs."

In that spirit, this Court concludes that the Mississippi Legislature's professed interest in "women's health" is pure gaslighting. In its legislative findings justifying the need for this legislation, the Legislature cites Casey yet defies Casey's core holding. The State "ranks as the state with the most [medical] challenges for women, infants, and children" but is silent on expanding Medicaid. Its leaders are proud to challenge Roe but choose not to lift a finger to address the tragedies lurking on the other side of the delivery room: our alarming infant and maternal mortality rates.

No, legislation like H.B. 1510 is closer to the old Mississippi—the Mississippi bent on controlling women and minorities. The Mississippi that, just a few decades ago, barred women from serving on juries "so they may continue their service as mothers, wives, and homemakers." The Mississippi that, in Fannie Lou Hamer's reporting, sterilized six out of ten black women in Sunflower County at the local hospital—against their will. And the Mississippi that, in the early 1980s, was the last State to ratify the 19th Amendment—the authority guaranteeing women the right to vote. (Emphasis added, citations omitted.)

A three-judge panel of the U.S. Court of Appeals for the Fifth Circuit upheld the injunction, but one of those three judges wrote a lengthy concurring opinion chastising Judge Reeves for being so MEAN to the Mississippi legislature. "Hating abortion doesn't necessarily make me a misogynist piece of shit" is less-than-stellar legal argument, but hey, that's where we are.

The Supreme Court's docket page for this case, Dobbs v. Jackson Women's Health Org., is available here for anyone who wants to keep up with all the filings and other developments.

[Stephen Maturin]

California v. Texas, 593 U.S. ___ (2021):

This one is genuinely shocking. As described here, back in 2012 the Court upheld the individual mandate provision of the Affordable Care Act as a valid exercise of Congress' taxing power. In 2017, the GOP-controlled Congress passed and the old incontinent fat guy then living in the White House signed a law reducing the statutory penalty for not procuring health care coverage to $0.00. That prompted wingnut state attorneys general to sue for a declaration that the individual mandate, and the ACA as a whole, was unconstitutional.

A wingnut federal trial judge agreed and shot down the whole ACA. The court of appeals agreed that the individual mandate was unconstitutional bit also ruled that the trial judge's analysis of whether the mandate's unconstitutionality mandating shooting down the entire Act was incomplete.

Today SCOTUS murdered the lawsuit without addressing the merits of the constitutional arguments, finding that the plaintiffs lacked standing to challenge the ACA. The vote was 7-2, with the majority consisting of Breyer, Roberts, Thomas, Sotomayor, Kagan, Kegs and Barrett.

Fulton v. City of Philadelphia, 593 U.S. ___ (2021):

Yet another surprise. The City of Philadelphia refused to contract with Catholic Social Services to provide foster care services unless and until CSS agreed to certify same-sex couples as foster parents. The outcome is not at all surprising. The Court held 9-0 that the city's action violated CSS's rights under the Free Exercise Clause of the First Amendment.

The shocking part is the decision of six justices to leave Employment Div. v. Smith, 494 U.S. 872 (1990) alone. Smith, a 5-4 ruling that's been under heavy fire since the day it was issued, held that religion-neutral, generally applicable laws are immune from Free Exercise Clause challenges even if they "burden" religious exercise. From that day to this, Smith has been all that stands between governments' ability to act and total religious snowflakery in Free Exercise Clause jurisprudence.

The Court accepted Fulton in part to decide whether Smith should be overruled. Roberts, Breyer, Sotomayor, Kagan, Kegs and Barrett sidestepped that issue, leaving Smith alive for now, by holding that the Philadelphia action at issue here was not truly "generally applicable" and that Smith therefore didn't apply.

[ChuckF]

At what point does there begin to arise at minimum a rebuttable presumption that the Texas AG lacks standing to bring any given case in the federal courts?

[Stephen Maturin]

I think we're WAY past that point as to the TX AG. The whole case-by-case assessment of standing thing is a gargantuan waste of judicial resources regarding that particular serial vexatious litigant.

[Stephen Maturin]

Every one here already knows that the Supreme Court matters and why. However, per a former poster, has billions of lurkers who spend all day here in hopes of learning, but who are scared shitless to post because ChuckF will bully them.

For the benefit of those billions, today is the eighth anniversary of Shelby County v. Holder, in which the Supreme Court neutered the provision of the federal Voting Rights Act requiring certain state and local governments to obtain advance federal approval for changes to voting laws. Mother Jones marked the occasion by noting the shitstorm of vote-suppression legislation that followed.

In other SCOTUS news, "fuck" and related terms retain their long-standing status as the most protected words in the history of Speech Clause jurisprudence.

[ChuckF]

Originally Posted by Stephen Maturin

In other SCOTUS news, "fuck" and related terms retain their long-standing status as the most protected words in the history of Speech Clause jurisprudence.

This is such a stupid case. Stupid facts, stupid procedural history (the school district appealed a preliminary injunction ordering reinstatement to the cheerleading squad? Who paid for this bullshit?) Cert must have been granted as some kind of teambuilding exercise.

Until we get to the dissent which is mostly blather but inspires me to learn more about the cheer squads that existed at the founding.

[Stephen Maturin]

Originally Posted by ChuckF

Stupid facts, stupid procedural history (the school district appealed a preliminary injunction ordering reinstatement to the cheerleading squad? Who paid for this bullshit?) Cert must have been granted as some kind of teambuilding exercise.

I could not agree more! It is fairly well known that some of the most important cases in the history of U.S. constitutional law were manufactured from whole cloth in law firm conference rooms, but damn! This one ain't exactly Gideon v. Wainwright.

Originally Posted by ChuckF

Until we get to the dissent which is mostly blather but inspires me to learn more about the cheer squads that existed at the founding.

I was hoping Clarence "You! Yes, you! STAND STILL, LADDIE!" Thomas would regale us with a meticulously formed argument regarding how public schools' plenary authority over student speech was a normal and natural outgrowth of of the non-public school headmaster's universally-recognized-at-the-time-of-founding authority to beat the everloving shit out of students. No such luck, sad to say.

[Ari]

I was reading through wikipedia to see what in the hell caused this to go up the chain, who had an issue with the obviously protected speech of saying fuck cheer in a large but still private group message that was set to delete but some snitch screen capped it (that’s got to be a violation of SnapChat terms somewhere right?) and I still don’t fully understand their reasoning, but I discovered that the High School’s wiki page now lists the offending cheerleader as the one and only “Notable Alumni” of the school, which feels like the ultimate burn.

[beyelzu]

My colleague Dahlia Lithwick calls this John Roberts’ two-step. We’ve seen it many times before. And in fact, when the Supreme Court gutted Section 5 of the Voting Rights Act in 2013, that was the second step—the first step had come a few years earlier in a case most people did not pay a ton of attention to, where John Roberts said, We’re upholding the Voting Rights Act and Section 5, but we’re very concerned about it, we’re not totally sure if it’s constitutional, so Congress might want to take a look at this. Then a few years later, when he dismantles that, he can say, well, we warned you. And there’s another Roberts two-step in action in Shelby County. He says, Section 2 is still there, we’ve still got this permanent ban on racial discrimination in voting. And then in Brnovich, he signs onto an opinion that says, We don’t really like what Section 2 says, so we’re going to water it down a meaningless standard that’s going to make it near-impossible to block voter suppression laws in court. Roberts gets a lot of credit for compromise opinions, and not as many people pay attention to what comes a few years late. You can’t just take a look at the last opportunity to come down at the end of the term and say it’s not as bad as it could be. You have to look at how John Roberts is selectively pulling out the Jenga blocks and getting ready for the tower to crumble.

Brnovich, Fulton, Bonta: This Supreme Court term’s catastrophe should not be underestimated.

Depressing read.

I’m left admiring Roberts Machiavellian maneuvering if not his character.

[Kamilah Hauptmann]

The right-wing Law Karens think they bought a Justice fair and square and now they want to talk to the manager

— WokeMeansYouLoseHat (@Popehat) August 13, 2021

[Kamilah Hauptmann]

Originally Posted by Kamilah Hauptmann

The Draft is also still in place. It's called poverty now.

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[Kamilah Hauptmann]

Gonna be wild when 10s of millions of people fall down like Michael Douglas.

[Kamilah Hauptmann]

for-the-last-time-son-there-were-some-emails-13611879.png

[beyelzu]

I know that I read an essay about how the current conservative court is illiberal which is pretty much the opposite of what they are supposed to be.

The use of the shadow docket supports the idea that the court is indeed illiberal using it to curb the Biden's administrations actions while they used it to allow the Trump administration to do things that were consitutionally iffy at best.

The term “shadow docket” was coined in 2015 by a conservative law professor to refer to the thousands of supreme court actions each term that defy the “normal procedural regularity” of the federal appellate process. A newer, expanded version of the shadow docket began to emerge in 2017, when the Trump administration came to power. Previously, shadow docket emergency requests had been rarely used, to advance the interests of the governing administration. From 2001 through 2016, the Department of Justice applied for these emergency relief interventions from the court only eight times. During the four years of Trump’s presidency, however, the justice department applied 41 times. The use of shadow docket requests by Trump’s justice department especially accelerated after 2018, when Justice Anthony Kennedy retired and was replaced by Brett Kavanaugh, initiating the court’s rightward lurch.

The gambit worked. Of those 41 requests, the supreme court granted 28 of them in whole or in part, denying the Trump administration outright only four times – much more generous than the court has been to other litigants. Bypassing lower courts, the Trump administration was able to solicit the supreme court for a green light for border wall funding and construction, for a ban of transgender troops in the military, for a ban of immigrants from Muslim majority countries, and for many, many executions during the administration’s 11th-hour killing spree in the latter half of 2020.

Ultimately, many of the policies that the court used the shadow docket to keep in place were never declared legal: they were simply rescinded when Trump left office. It was only because of the supreme court’s unusual intervention via the shadow docket that they were able to be enacted at all. If this seems like the court merely deferring to the prerogatives of the executive, rest assured that it isn’t: the court’s shadow docket has not been similarly generous towards Biden administration claims.

In this way, the shadow docket’s expanded use raises troubling questions – both for transparency, and for the separation of powers. What does it mean for popular sovereignty when the unelected supreme court can overturn the actions of elected officials seemingly at whim, without reading briefs, without hearing arguments and without having to assign judges’ names to their opinions or make any effort to explain their reasoning? The supreme court’s cryptic, late-night shadow docket decrees risk overextending the court’s already tremendous power, and its lack of transparency shrinks the already slim opportunities for oversight. There is considerable potential for abuse, and there are also simple logistical problems: without a real accounting of the justices’ reasoning, lower courts are left to guess why a certain decision was handed down, rendering them less equipped to interpret precedent.

The article from the guardian is pretty good.


It was largely based on this Harvard Lw Review essay by Steven Vladek.

The law review essay is pretty dense, but it looks fairly accessible to lay people(I felt like I could follow it easily enough)

I would expect a nakedly partisan court to be illiberal in just the way that the current Robert's court is. The conservative judiciary is apparently as unmoored from reality as the Republican base with a thin veneer of respectability.

[JoeP]

It's all over the place. The Economist has an article on it this week too:

Many of the Supreme Court’s decisions are reached with no hearings or explanation | The Economist

[ChuckF]

So yeah apparently Roe is toast.