SCOTUS Term 25-26

[BigPapaWhit]

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.

1. 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.
2. 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.
3. 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.
4. 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).
5. A little surprised at the absence of much discussion on why the state law doesn’t preclude girls from playing boys sports.
6. 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).
7. 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.
8. Notably, none of the parties took a position on whether the ep clause compels states to limit tg participation.

On to the wv case on the drive home tonight

Pt. 4 rolls back to the science question. Has it been answered? Does hormonal intervention actually mitigate supposed advantages? Is that even relevant to the argument at this point? You may have alluded to that in your earlier post.

Pt. 5 has always been of interest to me. Perhaps because I have a daughter. Perhaps me being in the military.

Pt. 6 If TG is not a protected class, is a case arguing discrimination brought under scientific or identity based gender?

 

[Aardvark86]

Pt. 4 rolls back to the science question. Has it been answered? Does hormonal intervention actually mitigate supposed advantages? Is that even relevant to the argument at this point? You may have alluded to that in your earlier post.

Pt. 5 has always been of interest to me. Perhaps because I have a daughter. Perhaps me being in the military.

Pt. 6 If TG is not a protected class, is a case arguing discrimination brought under scientific or identity based gender?

Re: #4, most of the justices indeed recognized and seemed to be a little wary of getting "too" heavily in the science, since even the science will always have exceptions, and those exceptions might just mean the protected class you're alleging is just smaller. For example, when considering the issue of athletic advantage at issue here, they gave the example of the overall set of "men," to "TG men," to "TG men taking hormone suppression," to "TG men taking hormone suppression for whom the supression is actually working," etc. It really does start to fundamentally transform how equal protection has historically been thought of and analyzed as a means and remedy for scrutinizing group-based legislative choices. At some point, you can keep redefining the group until it becomes infinitesimal. To be clear, it wasn't entirely clear that would "mean" for EP jurisprudence. It might mean simply "so what"?

Re: #6, where they seemed to be leaning was along the lines of bumping it back up a level of generality to "sex". Congress or a state write law that treats "men" and "women" differently. In the absence of any more specific information, they're simply going to evaluate whether the federal or state government's interpretation of "sex" - whether that be based on science or identity - was reasonable in light of what was trying to be achieved.

The WV case I'll listen to tonight may tease things out a bit re: #5. I think the basic gist is that inasmuch as the rule was designed to preserve women's sports opportunity in light of biological advantages of men, there's just no need for worrying about that. If a girl can make the boys team (and let me tell you, the second-best pitcher in my little league as a kid was a girl), great. In WV, the interesting angle is you're dealing with a child who was essentially prepubescent, so the potential biological "advantages" of being a boy may not yet have arisen.

 

[BigPapaWhit]

Re: #4, most of the justices indeed recognized and seemed to be a little wary of getting "too" heavily in the science, since even the science will always have exceptions, and those exceptions might just mean the protected class you're alleging is just smaller. For example, when considering the issue of athletic advantage at issue here, they gave the example of the overall set of "men," to "TG men," to "TG men taking hormone suppression," to "TG men taking hormone suppression for whom the supression is actually working," etc. It really does start to fundamentally transform how equal protection has historically been thought of and analyzed as a means and remedy for scrutinizing group-based legislative choices. At some point, you can keep redefining the group until it becomes infinitesimal. To be clear, it wasn't entirely clear that would "mean" for EP jurisprudence. It might mean simply "so what"?

Re: #6, where they seemed to be leaning was along the lines of bumping it back up a level of generality to "sex". Congress or a state write law that treats "men" and "women" differently. In the absence of any more specific information, they're simply going to evaluate whether the federal or state government's interpretation of "sex" - whether that be based on science or identity - was reasonable in light of what was trying to be achieved.

The WV case I'll listen to tonight may tease things out a bit re: #5. I think the basic gist is that inasmuch as the rule was designed to preserve women's sports opportunity in light of biological advantages of men, there's just no need for worrying about that. If a girl can make the boys team (and let me tell you, the second-best pitcher in my little league as a kid was a girl), great. In WV, the interesting angle is you're dealing with a child who was essentially prepubescent, so the potential biological "advantages" of being a boy may not yet have arisen.

Interesting point about prepubescent.

matter of clarification incase there is some misunderstanding-I am fine with women competing against men. My daughter plays tennis, practicing against males on a regular basis. Further, 20+ years in the military, I have witnessed women who are more capable than their male counterparts.
There is an interesting idea in who is actually the protected class, the TG or the females who may be at a competitive disadvantage but may not be afforded the same protection when entering the male arena.
Which leads me back to the science. If the drugs renders the biological males advantage moot, what about females transitioning? Does testosterone give them an unfair advantage competing against males? If testosterone is illegal for male athletes …what a worm hole.

 

[Aardvark86]

So I listened to wv on tonight’s drive. Clearly the heavier lifting was done in Idaho. The argument was much more statutory. Fairly clear the states will prevail, as most of the pressure on the state sg was in the nature of “do you really think we’re going to rule on this basis of your argument rather than the simpler that?

Also, I would not be surprised if the court actually writes a very narrow opinion limited to the sports context, in part to distinguish bostock (tg employment discrimination prohibited).

they really didn’t seem to be biting on the distinction that the plaintiff here started taking puberty blockers at a young age and therefore might not have had “male advantages” in sports.

 

[Aardvark86]

Back at it today fellas...
1. Today's argument is a "popular" case involving hi can presumptively prohibit concealed carry on private property unless the owner affirmatively consents to it. Tomorrow - Trump v Cook (Fed firing).
2. Two interesting cert grants on Friday - one on geofence warrants (ie, a warrant to a cell company to id everyone with a cell phone pinging within an investigatory geography), and a roundup product liability case.
3. Today's opinions
a. Berk v. Choy - state procedural pleading requirements don't apply to state law claims filed in federal court
b. A restitution case - court says it's a form of criminal punishment and therefore is subject to ex post facto standards
c. a Boring civil procedure case.

 

[Dadar]

Do they just keep kicking this can of worms down the road?

The US Supreme Court didn’t rule on President Donald Trump’s tariffs Tuesday, meaning it probably will be at least another month before a challenge to his signature economic policy is resolved.

 

[fatpiggy]

Back at it today fellas...
1. Today's argument is a "popular" case involving hi can presumptively prohibit concealed carry on private property unless the owner affirmatively consents to it. Tomorrow - Trump v Cook (Fed firing).
2. Two interesting cert grants on Friday - one on geofence warrants (ie, a warrant to a cell company to id everyone with a cell phone pinging within an investigatory geography), and a roundup product liability case.
3. Today's opinions
a. Berk v. Choy - state procedural pleading requirements don't apply to state law claims filed in federal court
b. A restitution case - court says it's a form of criminal punishment and therefore is subject to ex post facto standards
c. a Boring civil procedure case.

Good article on your #1

Court to hear oral argument on law banning guns on private property - SCOTUSblog

 

[Aardvark86]

So, it sounds like things didn't go too well for Hawaii in the challenge to its law prohibiting concealed carry on private property otherwise open to the public, without first securing permission (described as a "vampire law" in light of the old Dracula lore to the effect that he could not enter unless permitted).

First though, an interesting point, and one evocative of Justice Kagan's remark that "we're all originalists now" some years back. Just a very few years removed from recent 2A cases that have looked to history and tradition to assess 2A claims in modern contexts, all of the advocates seem to have accepted that basic argumentative and interpretive framework. To that end, in this case, Hawaii pointed to the "history and tradition" of the black codes, which often forbade blacks' ownership of firearms or required disarmament. Justice Gorsuch noted the irony of "liberal" groups relying on a racist set of laws to support their point, quipping (thematically) that to liberals, usually racist laws are like garlic in front of a vampire. Perhaps more tellingly, the Chief raised a good question to the effect that property ownership didn't support a requirement that political candidates first secure permission before exercising 1A rights to knock on your door to pitch their wares.

(EDIT: In thinking about it, the chief's hypothetical might also be relevant to the recent "peaceful protest" disrupting the church services of the ice pastor, though of course that's a little more complicated by the fact that the church service is itself also 1A protected activity. Those cases where two clear rights bump up against each other are always among the toughest, in contrast to more conventional cases where 'rights' are set opposite "powers".)

I'll probably listen to Trump v Cook on my drive home on Thursday. Setting aside the politics involved with the Fed, it does entail some thorny questions, like (i) what exactly does "cause" even mean in this context (eg, malfeasance on job duties, or other 'misconduct' calling into question of fitness), (ii) who gets to decide whether cause exists, (iii) what if any process is that subject to, and (iv) does it exist here based on disputed issues relating to Cook's mortgage application, and just how those issues came to light.

 

[BigPapaWhit]

Perhaps more tellingly, the Chief raised a good question to the effect that property ownership didn't support a requirement that political candidates secure permission before exercising 1A rights to knock on your door and pitch their wares.

Has there been such a challenge? Or is he saying 1A supersedes property rights? Too many jokes not worth the high hat.

 

[Aardvark86]

Has there been such a challenge? Or is he saying 1A supersedes property rights? Too many jokes not worth the high hat.

i believe they do have the right to cross the line and knock, but that you have the right to tell them to go pound sand. Edit: Justice Google tells me to take a look at Martin v City of Struthers (1943) where the right is established.

In short, you are presumptively allowed to canvas, but you must respect no trespassing signs, and you must leave when asked to do so.

 

[UrHuckleberry]

So, it sounds like things didn't go too well for Hawaii in the challenge to its law prohibiting concealed carry on private property otherwise open to the public, without first securing permission (described as a "vampire law" in light of the old Dracula lore to the effect that he could not enter unless permitted).

First though, an interesting point, and one evocative of Justice Kagan's remark that "we're all originalists now" some years back. Just a very few years removed from recent 2A cases that have looked to history and tradition to assess 2A claims in modern contexts, all of the advocates seem to have accepted that basic argumentative and interpretive framework. To that end, in this case, Hawaii pointed to the "history and tradition" of the black codes, which often forbade blacks' ownership of firearms or required disarmament. Justice Gorsuch noted the irony of "liberal" groups relying on a racist set of laws to support their point, quipping (thematically) that to liberals, usually racist laws are like garlic in front of a vampire. Perhaps more tellingly, the Chief raised a good question to the effect that property ownership didn't support a requirement that political candidates first secure permission before exercising 1A rights to knock on your door to pitch their wares.

(EDIT: In thinking about it, the chief's hypothetical might also be relevant to the recent "peaceful protest" disrupting the church services of the ice pastor, though of course that's a little more complicated by the fact that the church service is itself also 1A protected activity. Those cases where two clear rights bump up against each other are always among the toughest, in contrast to more conventional cases where 'rights' are set opposite "powers".)

I'll probably listen to Trump v Cook on my drive home on Thursday. Setting aside the politics involved with the Fed, it does entail some thorny questions, like (i) what exactly does "cause" even mean in this context (eg, malfeasance on job duties, or other 'misconduct' calling into question of fitness), (ii) who gets to decide whether cause exists, (iii) what if any process is that subject to, and (iv) does it exist here based on disputed issues relating to Cook's mortgage application, and just how those issues came to light.

I'm just here to say I love "vampire law"

 

[Aardvark86]

So I've had the oral argument on as background music this morning. Really going to have to listen more closely on the drive tomorrow. At the outset, I'll note that both sides are getting some hard questions, and with few exceptions, fairly across the board from the justices. SG Sauer and Paul Clement are counsel, so this is like national championship level advocacy. Pretty hard to draw much in the way of inferences as to most of the justices' leans, and the argument ranged across a lot of issues and potential ways this may be disposed of (injunction/mandamus standards, reviewability, what cause means, whether it exists, whether due process was satisfied, etc.)

Alito was probably the most predictable, and Clement actually handled him truly masterfully, including with some good humor (which requires some courage before scotus). Interestingly, the Chief's and Kav's questions showed a bit of their usual "pro executive" leanings.

 

[Aardvark86]

So, in all of the business of the week, I missed an interesting and politically very important emergency stay/injunction application, which the US filed a brief in support of yesterday.

A group of republicans had challenged California's newly gerrymandered map, which was approved by the California voters. While the record is relatively clear that the map was developed and 'pitched' to the public as a political gerrymander to counter the effects of Texas' gerrymander, and political gerrymanders are constitutionally permissible, as it happens, the record may also reflect that the map-drawer himself made specific statements to the effect that race was taken into account in drawing one or more districts. (There may also be some technical demographic map drawing inferences to that effect.) So, somewhat ironically perhaps, the republicans are challenging the CA map as a racial gerrymander. Note that Scotus let texas use its map given its 'political' purpose, but I don't think that Texas' record necessarily had the racial 'baggage' that CA's might....but man, that's gonna be some thin-slicing.

The 9th circuit rejected that challenge, in material part on the basis that the voters' approval of the map through the referendum process "cleansed" any racial issues that may have undergirded the map (or at least that's the challengers' take on the 9th circuit decision, which I've not read). If that's in fact the basis of the 9th circuit decision, I'm not so sure that is constitutionally sound. Small-d democratic racism is no more permissible than legislatively enacted racism. And note that if the court takes the case, given that we're under a year from election, I could easily see the CA map being put on hold for the 26 cycle based on the court's relatively common practice relating to the timing of pre-election changes.

Another interesting element. While I've not dug into exactly "how" the mapmaker allegedly may have taken race into account, just what 'taking into account' means could theoretically pose some unique challenges for democrats if interpreted broadly. The reality is that certain demographic groups have historically broken overwhelmingly toward democrats, relative to most other demographic groups that are a little more evenly split. Thus, the line between drawing lines based on 'party' and 'race' may be awfully thin, and in a way that isn't really presented for republicans.

CA briefs due 1/29.

As much as i think the court was actually right to hold that political gerrymandering was nonjusticiable, that doesn't make it a good idea, and our modern flavor of it (whether in TX, CA, or the version emerging here in VA) is just particularly revolting inasmuch as it actually reflects an affirmative effort at mass disenfranchisement of populations. That is sort of the opposite of representative government, and really says unflattering things about the nature of our modern political classes.

 

[Dadar]

So, in all of the business of the week, I missed an interesting and politically very important emergency stay/injunction application, which the US filed a brief in support of yesterday.

A group of republicans had challenged California's newly gerrymandered map, which was approved by the California voters. While the record is relatively clear that the map was developed and 'pitched' to the public as a political gerrymander to counter the effects of Texas' gerrymander, and political gerrymanders are constitutionally permissible, as it happens, the record may also reflect that the map-drawer himself made specific statements to the effect that race was taken into account in drawing one or more districts. (There may also be some technical demographic map drawing inferences to that effect.) So, somewhat ironically perhaps, the republicans are challenging the CA map as a racial gerrymander. Note that Scotus let texas use its map given its 'political' purpose, but I don't think that Texas' record necessarily had the racial 'baggage' that CA's might....but man, that's gonna be some thin-slicing.

The 9th circuit rejected that challenge, in material part on the basis that the voters' approval of the map through the referendum process "cleansed" any racial issues that may have undergirded the map (or at least that's the challengers' take on the 9th circuit decision, which I've not read). If that's in fact the basis of the 9th circuit decision, I'm not so sure that is constitutionally sound. Small-d democratic racism is no more permissible than legislatively enacted racism. And note that if the court takes the case, given that we're under a year from election, I could easily see the CA map being put on hold for the 26 cycle based on the court's relatively common practice relating to the timing of pre-election changes.

Another interesting element. While I've not dug into exactly "how" the mapmaker allegedly may have taken race into account, just what 'taking into account' means could theoretically pose some unique challenges for democrats if interpreted broadly. The reality is that certain demographic groups have historically broken overwhelmingly toward democrats, relative to most other demographic groups that are a little more evenly split. Thus, the line between drawing lines based on 'party' and 'race' may be awfully thin, and in a way that isn't really presented for republicans.

CA briefs due 1/29.

As much as i think the court was actually right to hold that political gerrymandering was nonjusticiable, that doesn't make it a good idea, and our modern flavor of it (whether in TX, CA, or the version emerging here in VA) is just particularly revolting inasmuch as it actually reflects an affirmative effort at mass disenfranchisement of populations. That is sort of the opposite of representative government, and really says unflattering things about the nature of our modern political classes.

After the decisions on Texas and favorable comments to the state legislature, did they not establish a precedent? Sorry if this has already been answered elsewhere in the thread.

 

[Aardvark86]

After the decisions on Texas and favorable comments to the state legislature, did they not establish a precedent? Sorry if this has already been answered elsewhere in the thread.

The Texas decision was indeed favorable and upheld the Texas map as a permissible political gerrymander, given the statements in the record and other statements about incumbent protection for some of the districts. The putative difference is that while CA undoubtedly had that too, it also may have had a turd floating in the punchbowl in the form of the map drawer's comments acknowledging race-based drawing.

 

[BigPapaWhit]

So, in all of the business of the week, I missed an interesting and politically very important emergency stay/injunction application, which the US filed a brief in support of yesterday.

A group of republicans had challenged California's newly gerrymandered map, which was approved by the California voters. While the record is relatively clear that the map was developed and 'pitched' to the public as a political gerrymander to counter the effects of Texas' gerrymander, and political gerrymanders are constitutionally permissible, as it happens, the record may also reflect that the map-drawer himself made specific statements to the effect that race was taken into account in drawing one or more districts. (There may also be some technical demographic map drawing inferences to that effect.) So, somewhat ironically perhaps, the republicans are challenging the CA map as a racial gerrymander. Note that Scotus let texas use its map given its 'political' purpose, but I don't think that Texas' record necessarily had the racial 'baggage' that CA's might....but man, that's gonna be some thin-slicing.

The 9th circuit rejected that challenge, in material part on the basis that the voters' approval of the map through the referendum process "cleansed" any racial issues that may have undergirded the map (or at least that's the challengers' take on the 9th circuit decision, which I've not read). If that's in fact the basis of the 9th circuit decision, I'm not so sure that is constitutionally sound. Small-d democratic racism is no more permissible than legislatively enacted racism. And note that if the court takes the case, given that we're under a year from election, I could easily see the CA map being put on hold for the 26 cycle based on the court's relatively common practice relating to the timing of pre-election changes.

Another interesting element. While I've not dug into exactly "how" the mapmaker allegedly may have taken race into account, just what 'taking into account' means could theoretically pose some unique challenges for democrats if interpreted broadly. The reality is that certain demographic groups have historically broken overwhelmingly toward democrats, relative to most other demographic groups that are a little more evenly split. Thus, the line between drawing lines based on 'party' and 'race' may be awfully thin, and in a way that isn't really presented for republicans.

CA briefs due 1/29.

As much as i think the court was actually right to hold that political gerrymandering was nonjusticiable, that doesn't make it a good idea, and our modern flavor of it (whether in TX, CA, or the version emerging here in VA) is just particularly revolting inasmuch as it actually reflects an affirmative effort at mass disenfranchisement of populations. That is sort of the opposite of representative government, and really says unflattering things about the nature of our modern political classes.

You may not be aware but SCs own redistribution efforts have come under challenge. Add to that, efforts to close primaries. The state is looking at potentially more extreme candidates finding space on the ballot. I’m really disappointed in both parties.

 

[FLaw47]

You may not be aware but SCs own redistribution efforts have come under challenge. Add to that, efforts to close primaries. The state is looking at potentially more extreme candidates finding space on the ballot. I’m really disappointed in both parties.

I can't fault California for what they did, unilateral disarmament is stupid. We need a national fix for this and I'm furious about Kennedy's swan song opinion making partisan gerrymandering constitutional. I don't understand how you can say "this is a political problem for politics to fix" when the whole point of gerrymandering is to break democracy.

 

[FLaw47]

I can't fault California for what they did, unilateral disarmament is stupid. We need a national fix for this and I'm furious about Kennedy's swan song opinion making partisan gerrymandering constitutional. I don't understand how you can say "this is a political problem for politics to fix" when the whole point of gerrymandering is to break democracy.

Multi member districts with proportional representation or do what Germany/New Zealand do, says I.

 

[fatpiggy]

 

[LafayetteBear]

So, in all of the business of the week, I missed an interesting and politically very important emergency stay/injunction application, which the US filed a brief in support of yesterday.

A group of republicans had challenged California's newly gerrymandered map, which was approved by the California voters. While the record is relatively clear that the map was developed and 'pitched' to the public as a political gerrymander to counter the effects of Texas' gerrymander, and political gerrymanders are constitutionally permissible, as it happens, the record may also reflect that the map-drawer himself made specific statements to the effect that race was taken into account in drawing one or more districts. (There may also be some technical demographic map drawing inferences to that effect.) So, somewhat ironically perhaps, the republicans are challenging the CA map as a racial gerrymander. Note that Scotus let texas use its map given its 'political' purpose, but I don't think that Texas' record necessarily had the racial 'baggage' that CA's might....but man, that's gonna be some thin-slicing.

The 9th circuit rejected that challenge, in material part on the basis that the voters' approval of the map through the referendum process "cleansed" any racial issues that may have undergirded the map (or at least that's the challengers' take on the 9th circuit decision, which I've not read). If that's in fact the basis of the 9th circuit decision, I'm not so sure that is constitutionally sound. Small-d democratic racism is no more permissible than legislatively enacted racism. And note that if the court takes the case, given that we're under a year from election, I could easily see the CA map being put on hold for the 26 cycle based on the court's relatively common practice relating to the timing of pre-election changes.

Another interesting element. While I've not dug into exactly "how" the mapmaker allegedly may have taken race into account, just what 'taking into account' means could theoretically pose some unique challenges for democrats if interpreted broadly. The reality is that certain demographic groups have historically broken overwhelmingly toward democrats, relative to most other demographic groups that are a little more evenly split. Thus, the line between drawing lines based on 'party' and 'race' may be awfully thin, and in a way that isn't really presented for republicans.

CA briefs due 1/29.

As much as i think the court was actually right to hold that political gerrymandering was nonjusticiable, that doesn't make it a good idea, and our modern flavor of it (whether in TX, CA, or the version emerging here in VA) is just particularly revolting inasmuch as it actually reflects an affirmative effort at mass disenfranchisement of populations. That is sort of the opposite of representative government, and really says unflattering things about the nature of our modern political classes.

Double A: The last paragraph of your post, above, is surely cut off unless one clicks to expand your post, but it is the one paragraph of your post that I agree with. The rest of your post strikes me as you searching for a way to claim that the Texas gerrymander (which was not submitted to the voters for their approval or disapproval) was somehow partisan but not racially motivated whereas the California gerrymander (which WAS submitted to the voters for their approval or disapproval) was both partisan and racially motivated, so that the Texas gerrymander merited Supreme Court approval while the California gerrymander did not. I hope that I misinterpreted your intent, because I find that argument to be laughable.

 

[Aardvark86]

Double A: The last paragraph of your post, above, is surely cut off unless one clicks to expand your post, but it is the one paragraph of your post that I agree with. The rest of your post strikes me as you searching for a way to claim that the Texas gerrymander (which was not submitted to the voters for their approval or disapproval) was somehow partisan but not racially motivated whereas the California gerrymander (which WAS submitted to the voters for their approval or disapproval) was both partisan and racially motivated, so that the Texas gerrymander merited Supreme Court approval while the California gerrymander did not. I hope that I misinterpreted your intent, because I find that argument to be laughable.

L. fwiw, I thought the argument around racial motivation in CA was exceptionally weak. As to TX, if I recall, the record was such that the R's were remarkably disciplined in talking (more or less only) about politics.

 

[Aardvark86]

BTW...big week ahead. Decisions incoming Friday, Tuesday and Wednesday.

A relatively below the radar couple of weeks in terms of upcoming arguments, though there is that one involving gun ownership restrictions for CS convicts.

 

[fatpiggy]

Wouldn't surprise me.

 

[fatpiggy]

How will Trump blame SCOTUS when he has picked almost half the bench?

 

[Aardvark86]

Wouldn't surprise me.

I have to say, as tea leaves go, the ones that are referenced in that article are pretty far down the speculative side of the spectrum, and the named speculators strike me as the types that engage in wishful/magical thinking.

I do think Alito will retire in 2028, but not at the end of this term.

 

[fatpiggy]

Tariff ruling incoming?

 

[Aardvark86]

Buckle up boys and girls, the fun part of the term STARTS NOW!!!

 

[Aardvark86]

tariffs vacated - ieppa does not confer authority.

Opinion looks to be relatively in line with what I predicted a few pages ago (a rare accurate prediction on my part). mostly statutory (under ieppa, the power to 'regulate commerce' under an emergency declaration does not include the power to impose tariffs.) Roberts tried to invoke major questions as well, but only got two other takers on that.

6-3. kav, Alito, and thomas dissent

 

[fatpiggy]

Checks and Balances has spoken.

 

[bdgan]

tariffs vacated - ieppa does not confer authority.

Opinion looks to be relatively in line with what I predicted a few pages ago (a rare accurate prediction on my part). mostly statutory (under ieppa, the power to 'regulate commerce' under an emergency declaration does not include the power to impose tariffs.) Roberts tried to invoke major questions as well, but only got two other takers on that.

6-3. kav, Alito, and thomas dissent

What does this mean?
Are trade deals also cancelled?
Are refunds required (they would go to importers, not consumers)?
Are there avenues other than ieppa the administration can use?

 

[Aardvark86]

Checks and Balances has spoken.

Exactly. As I think I've said elsewhere, the court has been bending over backwards for the administration on a lot of procedural matters. My personal view is that has in part been to see if the political processes would work things out, as they often do, and to avoid a constitutional decision that could have uncertain implications going forward. But this was the first time they didn't have a choice other than dealing with the merits, and the reality is that when they have to deal with the merits, there's more coherence and respect for constitutional structure than many would like to believe. And even here, they largely avoided the constitutional (other than as a rule of statutory construction to avoid thorny constitutional statements).

Definitely going to have to read this - Gorsuch's concurring opinion looks really interesting, and not entirely sure just what Kav/Thomas say in dissent.

Just a note that this is not entirely the end of the tariff saga. Now we get to see how 301 investigations play out.

 

[Aardvark86]

What does this mean?
Are trade deals also cancelled?
Are refunds required (they would go to importers, not consumers)?
Are there avenues other than ieppa the administration can use?

I suspect trade deals are not cancelled automatically, though I don't know whether they may contain termination rights.
No idea on refunds.
Yes, the 301 process is available, and is in active process.

 

[Jfcarter3]

Checks and Balances has spoken.

We are clearly in the Upside Down because this is the second time this week we have agreed on something.

 

[Jfcarter3]

I suspect trade deals are not cancelled automatically, though I don't know whether they may contain termination rights.
No idea on refunds.
Yes, the 301 process is available, and is in active process.

The refund process is going to be interesting. I'm living it in real time...

 

[anon1772460595]

I wonder how much money he made his cronies off blatant market manipulation in the meanwhile.

 

[dandeman330]

I would think the companies that were forced to pay illegal tariffs will sue to recoup those tariffs.

 

[Jfcarter3]

I would think the companies that were forced to pay illegal tariffs will sue to recoup those tariffs.

That can be a method for sure. In the International Trade Court.

 

[Aardvark86]

So the main dissent is essentially just classic statutory construction - that language, historical context, and precedent make the construction of "regulate ... importation" to include tariff powers a reasonable one. Whether you agree with it or not, it's fairly ordinary legal reasoning and not batshit crazy. But in many ways, I think the power of the controlling parts of the Chief's opinion is that it's a construction that doesn't suggest limits on executive power, and as I've said in the past, when you really drill down deeply, this is a court that in the big historical arc is going to be seen as trying to shift back to article 1 predominance.

Thomas' solo dissent is sort of interesting and weird in a Thomas kind of way. He basically makes an argument that the nondelegation doctrine only applies to "core" article 1 legislative powers, and that tariff powers are not core legislative powers. Will probably take a closer look at the detail this weekend, but that strikes me as leaning the wrong way.

 

[Burgess Diesel]

I work for a German company and this has been the expected decision based on conversations our legal team was having with those on the hill.
So apparently we've been prepping a case to sue in order to recoup any losses.

Honestly I don't know how much though, the business that I'm personally responsible for, we never ate any of the tariffs. That got passed along to the US companies to pay (and then onto you and me). I think there's only one or two situations I'm aware of within our BU that decided to absorb some of the tariffs, so 100% we're looking to get that back.

 

[BigPapaWhit]

So the main dissent is essentially just classic statutory construction - that language, historical context, and precedent make the construction of "regulate ... importation" to include tariff powers a reasonable one. Whether you agree with it or not, it's fairly ordinary legal reasoning and not batshit crazy. But in many ways, I think the power of the controlling parts of the Chief's opinion is that it's a construction that doesn't suggest limits on executive power, and as I've said in the past, when you really drill down deeply, this is a court that in the big historical arc is going to be seen as trying to shift back to article 1 predominance.

Thomas' solo dissent is sort of interesting and weird in a Thomas kind of way. He basically makes an argument that the nondelegation doctrine only applies to "core" article 1 legislative powers, and that tariff powers are not core legislative powers. Will probably take a closer look at the detail this weekend, but that strikes me as leaning the wrong way.

Thomas being Thomas?

More interested in K. I could be wrong but he seems to be willing to entertain arguments against executive power/authority.