it's even a little beyond that. if i were granted just one wish regarding the operation of the federal government, it would be that legislators break away from today's 'team game' and return to their constituent representation roots.
SCOTUS Term 25-26
- Thread starter Aardvark86
- Start date
So on my oh-dark-thirty drive to DC this morning, I did in fact listen to yesterday's argument on independent agency removal and Humphrey's Executor (and for the record, I did not fall asleep, as if I had, I would have probably killed myself on icy roads). A few observations...
1. As many articles have suggested, the nature of many of the questions did indeed suggest, in an indirect way, that Slaughter will not be coming back to the FTC. Much more about "how" rather than "whether" that result will apply.
2. Also as noted, it was not one of the better arguments I've listened to. As much as the justices routinely test the limits of the advocates' theories, many of their questions were so far down the road of reductio ad absurdem as to be unhelpful, and the advocates' responses to those questions weren't much better or helpful at identifying the outer limits or even conceding that they might exist. (IMO, Slaughter's attorney was somewhat better on this front.)
3. With that said, there were a few interesting angles and items....
a. There was surprising ambiguity regarding just when agencies exercise "executive" authority (arguably subject to presidential control under the President's "take care" grant in Article II). For example, rulemaking was called executive rather than legislative, lots of references to Article I courts (which IMO are otherwise easily dealt with by the constitution's grant of legislative authority to establish inferior courts), and Slaughter's counsel seemed to lean to the crazily narrow position that only the exercise of criminal enforcement powers constitutes executive action, even if a civil action authorized a fine of $100M (don't laugh, that's the statutory "civil" fine for not providing information during a drug price negotiation).
b. Some interesting remedial dialogue, ie, is the case necessarily about terminating the agency official, or could they instead simply invalidate the official's ability to undertake executive functions? (The latter would likely be too complicated for them to open the doors to)
c. Gorsuch (full disclosure, my favorite justice) very subtlely raised a really interesting issue around p. 46 of the transcript -- ie, if the concern with overruling Humphrey's is about concentrating too much power in the president, perhaps the "real solution" to that problem is put some teeth back into the nondelegation doctrine by requiring executive action to be consistent with choices that congress has made in the first instance (that is, don't allow such broad grants of authority). I've been saying for several years that this sort of thing "might" (IMO, hopefully) become the real legacy of the Roberts court.
d. Stare decisis got surprisingly short shrift, beyond Soto's broadsides about undercutting reliance on core government structures. Part of that may be that it's easy enough to distinguish given the difference in FTC powers at that time, as well as the erosion of Humphrey's reasoning in later cases.
4. I continue to really hate the way both Alito and Soto conduct themselves in arguments. They ask sloppy ham handed questions and when they don't get the answer they like, they just interrupt or cut off the advocate. Contrast that to both Kavenaugh and Kagan, who let the advocates have their say, tell them when there's something really important they want to hear about, and try to confirm their understanding of what the advocate is saying.
1. As many articles have suggested, the nature of many of the questions did indeed suggest, in an indirect way, that Slaughter will not be coming back to the FTC. Much more about "how" rather than "whether" that result will apply.
2. Also as noted, it was not one of the better arguments I've listened to. As much as the justices routinely test the limits of the advocates' theories, many of their questions were so far down the road of reductio ad absurdem as to be unhelpful, and the advocates' responses to those questions weren't much better or helpful at identifying the outer limits or even conceding that they might exist. (IMO, Slaughter's attorney was somewhat better on this front.)
3. With that said, there were a few interesting angles and items....
a. There was surprising ambiguity regarding just when agencies exercise "executive" authority (arguably subject to presidential control under the President's "take care" grant in Article II). For example, rulemaking was called executive rather than legislative, lots of references to Article I courts (which IMO are otherwise easily dealt with by the constitution's grant of legislative authority to establish inferior courts), and Slaughter's counsel seemed to lean to the crazily narrow position that only the exercise of criminal enforcement powers constitutes executive action, even if a civil action authorized a fine of $100M (don't laugh, that's the statutory "civil" fine for not providing information during a drug price negotiation).
b. Some interesting remedial dialogue, ie, is the case necessarily about terminating the agency official, or could they instead simply invalidate the official's ability to undertake executive functions? (The latter would likely be too complicated for them to open the doors to)
c. Gorsuch (full disclosure, my favorite justice) very subtlely raised a really interesting issue around p. 46 of the transcript -- ie, if the concern with overruling Humphrey's is about concentrating too much power in the president, perhaps the "real solution" to that problem is put some teeth back into the nondelegation doctrine by requiring executive action to be consistent with choices that congress has made in the first instance (that is, don't allow such broad grants of authority). I've been saying for several years that this sort of thing "might" (IMO, hopefully) become the real legacy of the Roberts court.
d. Stare decisis got surprisingly short shrift, beyond Soto's broadsides about undercutting reliance on core government structures. Part of that may be that it's easy enough to distinguish given the difference in FTC powers at that time, as well as the erosion of Humphrey's reasoning in later cases.
4. I continue to really hate the way both Alito and Soto conduct themselves in arguments. They ask sloppy ham handed questions and when they don't get the answer they like, they just interrupt or cut off the advocate. Contrast that to both Kavenaugh and Kagan, who let the advocates have their say, tell them when there's something really important they want to hear about, and try to confirm their understanding of what the advocate is saying.
Had a little bit of the death penalty case argument on as 'background music' this morning. Basically, the issue relates to execution of the intellectually disabled, which is generally prohibited for those with an IQ under 70. In this case, there were a range of IQ scores, most of which were above 70, but one of which had a margin of error that could have taken it below 70.
Ultimately, I think there are a couple of things that may be in play here. First, of course, is the question of how you deal with situations where you have a range of scores. Second, I would not be surprised if this comes down to some standard of review/burden of persuasion issues -- the federal district court overturned the execution, where the defendant may have had a burden to establish disability, but on appeal, it may be the state's burden to show that the federal court's decision to do so was unreasonable. Third that'll take us to a bigger question - whether scotus will establish a federal constitutional rule -- as opposed to a state one -- that will control.
i will note, in light of an earlier post, that this is a good case to illustrate some of my concerns about capital punishment. if nothing else, when it comes to executing the intellectually disabled in close cases with lots of clinical data points, it just sorta seems to me that the tie ought to go to the runner.
Also, as the calendar turns over to the new year, it'll be interesting to see whether we start to get some opinions in earlier cases
Ultimately, I think there are a couple of things that may be in play here. First, of course, is the question of how you deal with situations where you have a range of scores. Second, I would not be surprised if this comes down to some standard of review/burden of persuasion issues -- the federal district court overturned the execution, where the defendant may have had a burden to establish disability, but on appeal, it may be the state's burden to show that the federal court's decision to do so was unreasonable. Third that'll take us to a bigger question - whether scotus will establish a federal constitutional rule -- as opposed to a state one -- that will control.
i will note, in light of an earlier post, that this is a good case to illustrate some of my concerns about capital punishment. if nothing else, when it comes to executing the intellectually disabled in close cases with lots of clinical data points, it just sorta seems to me that the tie ought to go to the runner.
Also, as the calendar turns over to the new year, it'll be interesting to see whether we start to get some opinions in earlier cases
By burden does the state imply, it's up to the defendant to secure medical support and pay for testing. To put it another way, the defendant has to prove they are unfit as opposed to the state proving the defendant is fit to be executed.
By burden, I mean burden of persuasion. As a practical matter, in capital cases, the defendant will likely have been tested a fair bit, so there will be plenty of testing available, and if this issue is put on the table, the court will likely order additional testing. And a good defense counsel would certainly order the testing if was a potential issue.
My point above is that the court's ultimate decision here may come down to the procedural posture of the case. The defendant effectively persuaded the district court, based on the various tests available, that they were intellectually disabled. The state which filed the appeal now has some burden to show that was erroneous. One way they may do so is for SCOTUS to answer the question "which controls - a high range of IQ tests materially above 70, or a single one whose margin of error puts it below?" Ordinarily, I'd think that the holding "should" be that the district court did not act unreasonably in overturning the death penalty based on the one below, in the absence of some clear rule to the contrary, because there was at least some plausible evidence in the record to support the decision. (note also, my sense is that there may have been other non-test evidence cutting both ways in the record as well).
A final note here -- the other weird thing about these cases is that you could have multiple standards for multiple parts of the process. First, the defendant must be competent to stand trial (ie, able to understand what's going on and assist their counsel in their defense). Second, the defendant has to not be insane (eg, understand right from wrong in a way that would enable them to meet any intentional killing standard). Third, they have to not be "intellectually disabled" to the point that executing them would be considered cruel and unusual.
What's interesting is the use of 70 as the threshold. That is the threshold IQ used for identifying mental capacity for Special Education Services, but there is also a segment where performance due to other disabilities allows services even if IQ is over 70.
Basically if someone has an 85 IQ, but performs lower due to a disability such as Schizophrenia, they are deemed to be of Special Needs. The inverse is also true, some that have a low IQ, can perform better than expected due to interventions,hard work, etc.
Does this play at all in the court?
My wife is the Special Ed teacher,so I may not have explained that well lol.
Yes, there was a hint of that in some jargon they mentioned. My sense was that it was sort of qualitative evidence a court might consider in either side of the range
Yes.
Harmeet Dhillon Says The Supreme Court Is Set To STRIKE DOWN Racial Gerrymandering Under The Voting Rights Act.
"Among the first cases issued by the court of this term is going to be striking down the racial gerrymandering that previously the court has said was mandated under the Voting Rights Act."
"If everyone has to compete for all the votes, which I think is frankly the American way, people are going to scramble. We will have a fairer regime where we are not segregating people based on race. Such an outdated and repugnant and un-American concept."
Harmeet Dhillon Says The Supreme Court Is Set To STRIKE DOWN Racial Gerrymandering Under The Voting Rights Act.
"Among the first cases issued by the court of this term is going to be striking down the racial gerrymandering that previously the court has said was mandated under the Voting Rights Act."
"If everyone has to compete for all the votes, which I think is frankly the American way, people are going to scramble. We will have a fairer regime where we are not segregating people based on race. Such an outdated and repugnant and un-American concept."
Seriously. Can we keep this stuff out of this thread? This is really a commentary thread with what is currently being discussed. Most are appreciative of the legal insight being provided here without political slant or commentary.
Share it anywhere else @TigerGrowls , but please leave this one alone.
Think we're all cool with you dropping in to give your opinion, or share articles that are talking about the SCOTUS line of thinking, etc. Just would prefer to keep it from becoming a drop a twitter link of partisan thought. And that would go for people on the left that are prone to the left's version of it.Yoshi trying to kick me out of the library.
Yes sir. I am quietly exiting the premises so you scholars can carry on.
Literally the opposite of what I said. I don't want the left leaning instigators in here dropping inflaming stuff either. I welcome your opinion on stuff. Truly.
Interesting indeed. I have to say, I really don't love either the controlling opinion or Thapar's concurrence, as both of them seem to be going out of their way to write about the constitutional issue. Thapar is a very bright guy who could easily be nominated as the first Asian American SCOTUS judge, but he does have a bit of an unseemly habit of continually auditioning for the job, and his chief patron (McConnell) isn't around any more.
Beyond that...
1. It strikes me that the majority opinion is extremely squishy in suggesting that at some undefined point, an immigrant's contacts with the country become sufficient in duration to start conferring rights one would normally expect to be for citizens. OK, fine, but at what point might that occur.
2. For those who like the textual argument that hangs on the phrase "a well regulated militia, etc.", it would seem that one could easily invoke it (without having to get into the textual debate over people v. citizens) to argue persuasively that Congress surely has the power to regulate illegal immigrant firearm possession, since the presumption that an illegal immigrant would step up to the plate to defend the country seems a bit dubious. (Note, this could piggyback -- no pun intended -- a bit on one of the themes I've noted in teh birthright citizenship case, i.e., who does an immigrant owe their "loyalty" to?)
3. On the other hand, I also feel like hanging this whole thing on the meaning of a wildly broad term "the people" is a little uncomfortable. And similarly, I sort of feel like the historical approach is a little bit of a misfit. The historical context here was one of revolution, and so I just don't know that it's a great fit for the current context of an actual, operational country that has an actual, operating immigration and naturalization function which simply didn't exist at the time of the 2A.
Would SCOTUS take the case? I doubt it, given that the lower court was able to rule against the defendant (in a mere paragraph after their extensive discussion of the 2A history). That said, there are several cert petitions pending at the moment where the court is considering whether the 2A precludes certain groups of individuals from firearm possession. I'd guess that the best outcome for the defendant would be that his petition would get on hold, the court would decide one of these other cases, and then they'd remand for the lower court to reassess the case, if needed, in light of what they say in the other cases.
So for your holiday reading.
A surprising divergence of approaches, in significant part on procedural bases. But as I have cautioned those who lament the courts upholding the presidents various actions, there was going to come a point where they’d confront substance and draw a line. This may be one of the first.
A surprising divergence of approaches, in significant part on procedural bases. But as I have cautioned those who lament the courts upholding the presidents various actions, there was going to come a point where they’d confront substance and draw a line. This may be one of the first.
A Happy New Year to all! It's about that time of the month...er, next week, the SCOTUS resumes its argument schedule with a few interesting items on January's calendar.
But first...Friday has been designated as an opinion day! Taking a quick look back at some of the early cases of the term that have been argued, I suspect it'll be something dry and procedural, but if I were forced to place a bet on something sexier, I might lean toward an election law case given that we're now ten months away from the midterms. On that front, we did have one redistricting case argued, and another standing case in a challenge to state time/place/manner regulation of elections.
We also have orders on Monday. Not sure what's pending in terms of initial cert petitions, but the emergency docket stuff is mostly procedural/stay applications.
As to the January calendar, it's a little light in terms of volume, but three cases of "political" interest: (i) the state transgender sports restrictions on Wednesday; (ii) a 2A case about whether HI can prohibit concealed carry on private property unless the property owner has affirmatively consented; and (iii) the Lisa Cook Fed Reserve termination case.
But first...Friday has been designated as an opinion day! Taking a quick look back at some of the early cases of the term that have been argued, I suspect it'll be something dry and procedural, but if I were forced to place a bet on something sexier, I might lean toward an election law case given that we're now ten months away from the midterms. On that front, we did have one redistricting case argued, and another standing case in a challenge to state time/place/manner regulation of elections.
We also have orders on Monday. Not sure what's pending in terms of initial cert petitions, but the emergency docket stuff is mostly procedural/stay applications.
As to the January calendar, it's a little light in terms of volume, but three cases of "political" interest: (i) the state transgender sports restrictions on Wednesday; (ii) a 2A case about whether HI can prohibit concealed carry on private property unless the property owner has affirmatively consented; and (iii) the Lisa Cook Fed Reserve termination case.
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A brief update - as expected, today's opinion was a rather dull procedural matter from the october argument session, involving the court's jurisdiction over claims for postconviction relief in light of modifications to a mandatory sentencing statute. Claim allowed to proceed; opinion by Soto, with an interesting constellation of Kagan/Jackson/CJR/Kavanaugh. FWIW, the October session didn't have a lot of 'sexy' cases (LA redistricting is about it), but it included 10 cases, so Soto might still write there (though it would seem unlikely for other reasons)
Another process note as we enter argument sessions this week. The court denied a bunch of petitions today, but granted a few over the weekend. Most interestingly to me are a couple cases arising from the FCC. Basically, there is a recent line of cases saying that if an action was one seeking money, you might have a right to a jury trial, and extending that principle to some agency enforcement scenarios. (Note, the Sixth Amendment has long been interpreted in a 'history and tradition' manner, unlike say the 2A where that's a little newer.) In these cases, the court will consider whether certain FCC civil money penalties trigger a jury trial right.
Tomorrow are the TG cases; I'll probably listen to those arguments on my drive back to lex on thursday night if the coverage suggests they may be interesting.
Edit: also, wednesday is another opinion day.
Tomorrow are the TG cases; I'll probably listen to those arguments on my drive back to lex on thursday night if the coverage suggests they may be interesting.
Edit: also, wednesday is another opinion day.
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If you are able to listen, would appreciate your thoughts as always.
it's a 3 hour drive, so it's either that or the Sirius Bluegrass channel!
I mean, nothing wrong with Billy Strings and Mandolin Orange.it's a 3 hour drive, so it's either that or the Sirius Bluegrass channel!
Nothing whatsoever! My late American Government professor from college introduced me to the flat picking of Norman Blake, Tony Rice, and Doc Watson. Couldn't understand how I'd never been exposed to it before. Billy has taken up that tradition as well as anyone.
Freaking love Billy Strings. My sister in law is a huge bluegrass fan and takes us to see groups fairly often. There is a pretty cool spot on Honea Path that gets some good groups.
Here in lexington, there is a cool little venue called "Lime Kiln Theater", which is essentially an outdoor stage that has been carved into a limestone quarry. Each year, they get a wide variety of bluegrass/americana/etc. groups that come in. My favorite last year was Ricky Skaggs. Also had a great time with Marty Stuart, who dubbed the venue "Carnegie Holler".
it's just a fascinating and wonderful genre of music - many parallels to jazz as a mix of religious and cultural sounds, virtuosity, similar forms. And best of all, i think it's one of the few honest things left out there.
There is also a very direct connection to English and Irish folk music. Which tracks if you consider that most of the settlers to the Appalachian area are from England and Ireland.
If you are interested in the history, there is a cool movie called Songcatcher that details as musicologist who discovers and records the music.
Exactly. As jazz was a by product of african music and "black" gospel, bluegrass is the amalgam of scots-irish folk music and "white" gospel. Each has its own dramatically different and unique harmonics (blues v high register). Also, Skaggs' memoir is a remarkably good read with lots of oral history of personal relationships back to bill monroe.
One of the best classes I took in My undergrad Music degree was ethnomusicology. We studied world musics and the cultural influences, as well as American styles and their influences. Really,really cool stuff
BTW, that movie looks good; I may try to find it.
Very reminiscent of one of the first people I met here in Lexington - my first truly southern gothic character. Without boring you with all of the details of that, he edited one of the volumes of the "Firefox" book series, which was a Georgia English teacher's effort to teach this students to write by essentially having them go out and take oral histories from their appalachian relatives. It ended up being a truly extraordinary treasure trove of cultural history that would have been lost had they not captured it. There is an entire volume on folk/herbal remedies, which I understand is valued by people who are serious hikers and outdoorsmen.
That's so cool. I have such regrets that I didn't spend more time talking with my grandparents. Both of my grandad's were in WW2 for example.
my favorite WWII oral history is Studs Terkel's "The Good War". What's really cool about it is he covers stories from every perspective -- both sides, senior people, junior people, home front, business people, government.
I did not get to listen to the arguments live (and will do so this week), but I did catch a few snippets of live blogs. General tenor seems to be that the states will prevail, but there's likely to be a bunch of opinions, some with an eye to the next case about whether states "must" (rather than may) prohibit TG sports participation or whether TG status confers rights "independent" of sex-related matters. May also be important to consider distinctions between 'constitutional' equal protection and 'statutory' title ix protection.
So, I won't offer too much today, other than this one little provocative side observation. It's sort of a fascinating thing lately that in many high profile political cases courts generally, and this court in particular, are at one point or another urged to decide cases on "the science" one way or another. Sometimes, "the science" has been "determined" by a single district judge at trial (perhaps following testimony from one or two [partisan] experts), and sometimes it's brought to an appeals court's attention via non-party amicus briefs. I have finally found myself wondering, legally, "who really GAF about the science?" That is, traditionally legislation is enacted based on "legislative facts", ie, how the legislature sees the world or a problem and makes its political judgments to address it, and beyond that, I'm not aware of any constitutional principle that requires science-based decisionmaking or holds that science trumps political decisionmaking. At best, in terms of due process , decisions must be "reasonable" which is a very low bar akin to "not wholly irrational". Obviously, it's nice when the two march side by side, but fundamentally, politics undergirds the system. And perhaps for good reason, inasmuch as politics carries accountability, whereas "science" and technocracy may not.
One other reminder - we will get opinion(s) tomorrow. While I continue to think election stuff may be first among the 'high profile' cases, a lot of people are talking about tariffs.
So, I won't offer too much today, other than this one little provocative side observation. It's sort of a fascinating thing lately that in many high profile political cases courts generally, and this court in particular, are at one point or another urged to decide cases on "the science" one way or another. Sometimes, "the science" has been "determined" by a single district judge at trial (perhaps following testimony from one or two [partisan] experts), and sometimes it's brought to an appeals court's attention via non-party amicus briefs. I have finally found myself wondering, legally, "who really GAF about the science?" That is, traditionally legislation is enacted based on "legislative facts", ie, how the legislature sees the world or a problem and makes its political judgments to address it, and beyond that, I'm not aware of any constitutional principle that requires science-based decisionmaking or holds that science trumps political decisionmaking. At best, in terms of due process , decisions must be "reasonable" which is a very low bar akin to "not wholly irrational". Obviously, it's nice when the two march side by side, but fundamentally, politics undergirds the system. And perhaps for good reason, inasmuch as politics carries accountability, whereas "science" and technocracy may not.
One other reminder - we will get opinion(s) tomorrow. While I continue to think election stuff may be first among the 'high profile' cases, a lot of people are talking about tariffs.
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So, I was thinking about listening to TG argument files last night, but then my Washington Capitals began the comeback process of ABSOLUTELY STEALING two points from the Montreal Canadiens, with two goals in the third and one in OT. Marty St. Louis had to be PISSED. So you have to wait a little longer. But, you don't have to wait for opinions!
Three opinions today -- 2 unanimous criminal cases, one in which the court held that the warrantless entry exception to render aid in emergencies is governed by an objective reasonableness standard. In the third, the Chief in a 7-2 decision ruled that political candidates do have standing to challenge rules governing the counting of absentee ballots, reversing the 7th circuit. (Note, the challenger - who actually won his election handily - argued that absentee ballots must be counted by election day, and not after, and that he had standing due to, among other things, the additional costs of monitoring post election day counts and recounts. I believe that substantive issue may be the subject of another pending case.) Roberts ruled - in some fairly squishy language - that candidates have a unique and particularized interest in fair process, regardless of actual impact on the ultimate outcome, sufficient to confer standing. Among other things, the court noted that if a likely effect on outcome were necessary, it would channel challenges to right before election day when probabilities are better known, and that is disfavored. Barrett and Kagan concurred, but on the alternative ground that the candidate's simple pocketbook injury of additional monitoring costs conferred standing. Jackson and Soto dissent arguing that candidates don't allege injury unless they can allege outcome impact. IMO, the best part of their argument is that the "fair process" angle relied on by the Chief could be applied equally to any dissatisfied voter, but we don't allow everybody to challenge elections or electoral processes.
It's a good day to be an election lawyer. And a candidate. The interesting thing here is whether it creates a potential for wing-nut third party candidates with no chance of winning to start becoming professional election law "stalking horse" challengers. Sure, lots of work involved, but I'm sure there's enough money in politics to support it.
I'm kinda in the Barrett/Kagan camp on this one. I "get" the Chief's point -- that actual candidates have a "special" interest in being able to compete by legal and fair rules -- but just not so sure it rises to the level necessary to confer standing.
EDIT - the substantive challenge to counting ballots after election day is indeed pending before Scotus in the Watson case, which has not yet been set for argument, though the plaintiff in that case was a national party rather than a candidate. So perhaps not horribly surprising in terms of the outcome.
Three opinions today -- 2 unanimous criminal cases, one in which the court held that the warrantless entry exception to render aid in emergencies is governed by an objective reasonableness standard. In the third, the Chief in a 7-2 decision ruled that political candidates do have standing to challenge rules governing the counting of absentee ballots, reversing the 7th circuit. (Note, the challenger - who actually won his election handily - argued that absentee ballots must be counted by election day, and not after, and that he had standing due to, among other things, the additional costs of monitoring post election day counts and recounts. I believe that substantive issue may be the subject of another pending case.) Roberts ruled - in some fairly squishy language - that candidates have a unique and particularized interest in fair process, regardless of actual impact on the ultimate outcome, sufficient to confer standing. Among other things, the court noted that if a likely effect on outcome were necessary, it would channel challenges to right before election day when probabilities are better known, and that is disfavored. Barrett and Kagan concurred, but on the alternative ground that the candidate's simple pocketbook injury of additional monitoring costs conferred standing. Jackson and Soto dissent arguing that candidates don't allege injury unless they can allege outcome impact. IMO, the best part of their argument is that the "fair process" angle relied on by the Chief could be applied equally to any dissatisfied voter, but we don't allow everybody to challenge elections or electoral processes.
It's a good day to be an election lawyer. And a candidate. The interesting thing here is whether it creates a potential for wing-nut third party candidates with no chance of winning to start becoming professional election law "stalking horse" challengers. Sure, lots of work involved, but I'm sure there's enough money in politics to support it.
I'm kinda in the Barrett/Kagan camp on this one. I "get" the Chief's point -- that actual candidates have a "special" interest in being able to compete by legal and fair rules -- but just not so sure it rises to the level necessary to confer standing.
EDIT - the substantive challenge to counting ballots after election day is indeed pending before Scotus in the Watson case, which has not yet been set for argument, though the plaintiff in that case was a national party rather than a candidate. So perhaps not horribly surprising in terms of the outcome.
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Sort of funny that a non-event is described as "breaking". Ah, the world we live in.
At the end of the day, as I think about it, it's also sort of funny how people just never seem to internalize that, as a practical matter, year in and year out, the most important and complicated decisions usually get released at the end of the term rather than among the first opinions. usually, the people that don't like the court say it's because they're trying to get them out and then sneak out of town for the summer. The reality is that (i) they want to get them done carefully given teh issues, (ii) there are usually multiple justices writing, and (iii) usually the longest opinions are the dissents rather than the lead or concurrence.
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So last night I listened to the first tg argument while watching hockey. What can I say - a bit of a quiet night. A few observations.
- Recall that there are 2 cases, Idaho, involving a college aged person, and wv, involving a young person. Idaho was constitutional, wv a title 9 claim.
- Idaho atty was really good and fantastically prepared. Made a point of answering the questions even when diverted or interrupted. SG and plaintiff’s attorney were ok but nothing to write home about. Overall the justices seemed to be better behaved than usual in terms of interruptions and the like, including Alito and Soto.
- Mootness. In Idaho the plaintiff sought to dismiss once the supremes granted cert. ostensibly because of attention, but probably for fear of a bad outcome. Soto was the only one who bit on mootness and was a real wiener about it, citing the horrific impact on one’s life having a scotus case which you brought named after you. A little late to think of that.
- Kagan had interesting inquiries right out of the gate about whether in ep litigation “as applied” challenges are viable. I actually think she was struggling with the case a bit. For a while I was having a hard time sorting through all of the arguments on this. In essence the state said that in sex oriented cases, you evaluate the sex based classification (here, boys and girls sports due to competitive advantage) generally under intermediate scrutiny. Plaintiff said no, if on an exceptions basis the particular plaintiff didn’t have advantages (eg due to hormonal interventions) then the classification has to be more narrowly tailored. Once I sort of heard the plaintiffs attorney, it really seemed to me like the argument was a shell game to create a back door to turning an intermediate scrutiny case into a strict scrutiny case (the standard for race).
- A little surprised at the absence of much discussion on why the state law doesn’t preclude girls from playing boys sports.
- One thing that did seem clear to me was that we are not getting a new “protected class” out of this (ie, TG is not a distinct protected class relative to sex).
- While many press pieces suggested Gorsuch and kav showed their cards strongly to the state, I don’t think it was as strong as was suggested. Maybe Kav a little.
- Notably, none of the parties took a position on whether the ep clause compels states to limit tg participation.
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