SCOTUS Term 25-26

[fatpiggy]

well, he sort of gets it. i don't think it's nearly as obvious as to just what all has to happen on/by that day, merely because of the use of the word day..

I notice you have been skating around the "it requires that presidential electors be appointed "on election day" part of the law. How do you propose that part of the law be legally circumvented in your scenario?

It may not seem obvious to you, but to me it's fairly obvious the word day means the word day. I guess we will just have to agree to disagree and that's why we have the supreme court!

 

[Jfcarter3]

Not quite comparable. Unlike taxes, which you will be obligated to file and pay at some point, there is arguably more reason to be "flexible" around postmark dates. And particularly because you can file for an extension if you miss the filiing deadline. Elections, on the other hand, do have to "end", even if the 'end point' is seemingly arbitrary.

IMO, the way this 'should' get resolved by the court is that, given that the constitution provides that states set the time place and manner of electoral processes except as otherwise provided by congress, and here the mere identification of an 'election day' by Congress does not clearly preempt state rules on timing of receipt and counting, the state should win. That's actually fairly ordinary legal reasoning..

I don't disagree with this.

 

[Moogy]

Alito gets it.


"We have LOTS of phrases that involve two words, the last of which, the second of which is DAY. Labor DAY, Memorial DAY, George Washington's birthDAY, Independence DAY, birth DAY, and election DAY!" "And they're all particular DAYS." "So if we start with that, if I have nothing more to look at than the phrase election day, I think this is the DAY in which everything is going to take place, or almost everything."

I know this iteration of the Court is trash, but I didn't realize the full extent of their stupidity.

Your birthDAY is whichever day on which you were born ... so, if you were born March 23, 2000, your birthday will always be on March 23 ... but you can certainly do things related to your birthday before or after that day. Oh, you want to have a big party, but your birthday falls on a Monday this year? Well, we'll have that party the weekend before, or the weekend after. Oh, I mailed you your birthday present, but it didn't get to you by March 23? It's still a valid present, and it's still a birthday present.

 

[Aardvark86]

I notice you have been skating around the "it requires that presidential electors be appointed "on election day" part of the law. How do you propose that part of the law be legally circumvented in your scenario?

It may not seem obvious to you, but to me it's fairly obvious the word day means the word day. I guess we will just have to agree to disagree and that's why we have the supreme court!

I actually think that is the hardest part here, and oddly enough, the one I didn't hear referenced during the argument. I suppose the cheap way out here is that we're currently talking about the application of the MS law in the context of a non-presidential election.

There were also a surprising number of questions about what to make of the history here. While I havent looked at all at the briefs on that subject, the questions asked seemed to suggest both unclear and counterintuitive answers, but I don't know which way that cuts.

If I had to guess - and this would be a pretty wild guess - I'd say the Chief and ACB side with the liberal justices and the state. Kav was pretty quiet but asked a question during oral argument that seemed to lean toward the challengers.

 

[UrHuckleberry]

I also find it concerning that it was just ruled you can't sue the USPS for not delivering your mail at the same time they're about to rule on receiving ballots after election day.

 

[BigPapaWhit]

I actually think that is the hardest part here, and oddly enough, the one I didn't hear referenced during the argument. I suppose the cheap way out here is that we're currently talking about the application of the MS law in the context of a non-presidential election.

There were also a surprising number of questions about what to make of the history here. While I havent looked at all at the briefs on that subject, the questions asked seemed to suggest both unclear and counterintuitive answers, but I don't know which way that cuts.

If I had to guess - and this would be a pretty wild guess - I'd say the Chief and ACB side with the liberal justices and the state. Kav was pretty quiet but asked a question during oral argument that seemed to lean toward the challengers.

Where the consitution is silent, I would think the state holds. Which I believe, is what you stated earlier.

 

[fatpiggy]

I also find it concerning that it was just ruled you can't sue the USPS for not delivering your mail at the same time they're about to rule on receiving ballots after election day.

They lose $10 Billion a year, is there anything to sue? haha

 

[fatpiggy]

Where the consitution is silent, I would think the state holds. Which I believe, is what you stated earlier.

That's fair, but that would mean that it is not silent on presidential elections and, therefore, it would mean election day for all presidential elections.

 

[Aardvark86]

Where the consitution is silent, I would think the state holds. Which I believe, is what you stated earlier.

To clarify (in an admittedly anal retentive way), it's that the constitution provides that if the statute is silent (or silent enough), the state's rules should prevail. Here, Congress hasn't been "completely" silent in that they've said there is an "election day" (and the history seems to suggest that was to prevent different election days in different states), but I don't think it's been 'vocal' enough in doing so as to overcome the presumption in favor of state power.

 

[fatpiggy]

Harmeet gets it.

After yestrrdays arguments, I think Election Day will end in Election Day as I proposed.

Words have meaning, the words are in the law. The electors must be chosen on Election Day. If the votes aren’t counted, you can’t select the electors. If you don’t like the law, change it but that’s what it, very clearly to me, says. (And to Alito and other bright legal minds)

Assistant AG Harmeet Dhillon NAILS IT: "We argued in our brief that because Congress has these laws that refer to an election DAY, election day should mean election DAY, meaning the last day by which ballots can be received by the state and processed."

Time will tell I suppose

 

[FLaw47]

Harmeet gets it.

After yestrrdays arguments, I think Election Day will end in Election Day as I proposed.

Words have meaning, the words are in the law. The electors must be chosen on Election Day. If the votes aren’t counted, you can’t select the electors. If you don’t like the law, change it but that’s what it, very clearly to me, says. (And to Alito and other bright legal minds)

Assistant AG Harmeet Dhillon NAILS IT: "We argued in our brief that because Congress has these laws that refer to an election DAY, election day should mean election DAY, meaning the last day by which ballots can be received by the state and processed."

Time will tell I suppose

If the electors have to be appointed on election day, what happens when votes take longer to count (as happens every election?)

 

[fatpiggy]

If the electors have to be appointed on election day, what happens when votes take longer to count (as happens every election?)

Harmeet gets it correct. It’s the last day ballots can be received and processed.

 

[fatpiggy]

If the electors have to be appointed on election day, what happens when votes take longer to count (as happens every election?)

Never the less, can we agree that the law passed by congress does indeed say that electors must be appointed on Election Day?

Instead of contorting scenarios to circumvent the law, justice would say that the process is adjusted to fit the law.

Mail in ballots are still legal, just make sure they are post marked on time so they arrive on Election Day . It’s not difficult and it doesn’t prevent anyone from voting. It just takes a little responsibility, the lowest bar of responsibility. If you want to vote by mail, you assume the risk of everything that comes along with it. Your vote may be delayed, it may be lost, it may be stolen. But Election Day is Election Day. Come hell or high water, the votes are done being processed that day. That’s what the law says.

 

[Aardvark86]

Harmeet gets it.

After yestrrdays arguments, I think Election Day will end in Election Day as I proposed.

Words have meaning, the words are in the law. The electors must be chosen on Election Day. If the votes aren’t counted, you can’t select the electors. If you don’t like the law, change it but that’s what it, very clearly to me, says. (And to Alito and other bright legal minds)

Assistant AG Harmeet Dhillon NAILS IT: "We argued in our brief that because Congress has these laws that refer to an election DAY, election day should mean election DAY, meaning the last day by which ballots can be received by the state and processed."

Time will tell I suppose

So I listened to the oral argument again on my drive up from the Shenandoah this morning at oh-dark thirty.

First, I'm still not buying the Alito rhetorical flourish, in that none of the other "days" he analogizes to are days "defined by" the fact that "something" is supposed to happen on the day; they are mere commemorations of things that have previously happened. It begs the question regarding what is supposed to (or must) happen on election day.

Second, I continue to believe that, given Article I's baseline allocation of power to states to specify the time/place/manner of elections, it is too much weight for the mere statutory phrase "election day" to carry to suggest that Congress has effectively foreclosed state discretion as to when a ballot cast on or before election day must be received. Oddly, only Justice Jackson really articulated that construct in the oral argument, and then only at the end of the round robin questions of, IIRC, the SG.

Third, having had a better chance to focus on the oral argument, I will note that the tenor of it was much stronger in favor of the challengers' position than I'd perceived when I had it on as "background music" yesterday, and I do think they're going to prevail. There were a lot of questions that seemed to be focusing on whether the "election day" phrase affects or limits what can occur "before" the appointed day (eg, early or mail in voting), and some implicit concern perhaps about whether that's the next case. But if I were to try to describe the "best" argument for the challengers as fairly as possible, it is that the vote must be "perfected" (or, as Clement said - quoting an earlier case that ticked Kagan off - "consummated") on the election day, and that perfection requires not only that the voter make a choice, but that the vote be in the custody of the state. IMO, the theory is fair enough, but only takes you so far, because it begs the question of whether, in the absence of more federal statutory specificity from Congress, a state's time/place/manner powers would still enable it to specify what will be deemed to be acceptable custody (eg, in MS's case, placement in the hands of the mail or common carrier with a pre-election day postmark, and receipt within a few days afterwards). (BTW, on that front some thorny/uncomfortable questions from Thomas/Gorsuch about whether a state could deem it to be acceptable custody if it were given to say, a 'neighbor' or a political party representative/block captain to subsequently deliver to the state.)

Fourth, and again oddly, neither the argument nor the briefs (from the quick peek I took last night) seem to focus much at all of the "electors" language in 3 USC 1. To your point, I do think that poses some hard questions -- maybe even so hard that the justices ignored them as being wholly impractical. For example, implicit in the notion of elector selection is the idea that the votes must actually be counted by election day, and I don't think anybody was really taking that on. So to the point above, maybe the best answer is that "perfection/consummation" by the voters is what is required in terms of elector selection, or that the statutory phrase "appointment" of electors essentially describes the perfection/consummation process).

Fifth, I agree with your point below - at the end of the day, this should hardly be the end of the world. It's not like elections are surprise events, and people can and should easily plan accordingly to vote in a manner that creates confidence that their vote will be counted.

Finally, I'd be remiss if I didn't note that, as always, Clement (representing the Libertarian rather than the Republican Party) was just masterful. He is without a doubt the best advocate there is. As I was listening to his responses to questions ranging from federal statutory history back to the 1840s, to changes in specific states' electoral practices over the last 100 years, to how armed forces personnel voted from the civil war to the 20th century, to MS's law, and then his rhetorical ease and candor with the justices (including a quip about how he'd never suggest that voting fraud might occur in Chicago), it occurred to me that I wouldn't have the slightest idea how a person would possibly get that prepared for an argument, even of this magnitude. Just truly unbelievable.

 

[Aardvark86]

BTW, the second case up today is sort of interesting -- Al Otro Lado. Deals with asylum claims, where a person has to 'arrive in the United States' to make an asylum claim. The issue is whether person is deemed to 'arrive at the us' when they are at the border, but not on the us side of it.

 

[FLaw47]

Never the less, can we agree that the law passed by congress does indeed say that electors must be appointed on Election Day?

Instead of contorting scenarios to circumvent the law, justice would say that the process is adjusted to fit the law.

Mail in ballots are still legal, just make sure they are post marked on time so they arrive on Election Day . It’s not difficult and it doesn’t prevent anyone from voting. It just takes a little responsibility, the lowest bar of responsibility. If you want to vote by mail, you assume the risk of everything that comes along with it. Your vote may be delayed, it may be lost, it may be stolen. But Election Day is Election Day. Come hell or high water, the votes are done being processed that day. That’s what the law says.

No, that is not a neutral reading. If the ELECTORS must be chosen on election day the way you're describing, then recounts and slow counts are illegal. I don't find your argument persuasive.

 

[fatpiggy]

No, that is not a neutral reading. If the ELECTORS must be chosen on election day the way you're describing, then recounts and slow counts are illegal. I don't find your argument persuasive.

I'm not going for a neutral reading. I'm going with what the words say. And the words do indeed say, whether you want to acknowledge it or not, that electors must be appointed on election day. It doesn't say there can't be an appeals process. It doesn't say there can't be a mechanism for a recount. What it does say, is that electors must be chosen on election day. And that is a law passed by congress.

 

[FLaw47]

I'm not going for a neutral reading. I'm going with what the words say. And the words do indeed say, whether you want to acknowledge it or not, that electors must be appointed on election day. It doesn't say there can't be an appeals process. It doesn't say there can't be a mechanism for a recount. What it does say, is that electors must be chosen on election day. And that is a law passed by congress.

So our entire electoral process is illegal right now, to your reading. Because a lot of states don't finish counting on election day. This is a really silly argument. (This doesn't mean SCOTUS won't go for it).

 

[Aardvark86]

So our entire electoral process is illegal right now, to your reading. Because a lot of states don't finish counting on election day. This is a really silly argument. (This doesn't mean SCOTUS won't go for it).

The better counter - practically more compelling but linguistically a little unsatisfying - is probably that 3 usc 1’s “appointment of electors” language is referring to the same “Election Day” process (whatever that entails) referred to in title 2 relating to national legislative elections. The case for why that makes some sense is that we don’t actually vote for presidents, we vote for electors. Additionally, there is also the more specific qualifier “in accordance with the laws of the state” at the end, which interestingly enough does not appear in 2 USC 7 relating to house elections.

 

[fatpiggy]

The better counter - practically more compelling but linguistically a little unsatisfying - is probably that 3 usc 1’s “appointment of electors” language is referring to the same “Election Day” process (whatever that entails) referred to in title 2 relating to national legislative elections. The case for why that makes some sense is that we don’t actually vote for presidents, we vote for electors. Additionally, there is also the more specific qualifier “in accordance with the laws of the state” at the end, which interestingly enough does not appear in 2 USC 7 relating to house elections.

Thoughts on Missouri vs Biden?

To someone who knows little law, what is the difference between a consent decree and a ruling and why did it only last 10 years?

 

[Aardvark86]

Thoughts on Missouri vs Biden?

To someone who knows little law, what is the difference between a consent decree and a ruling and why did it only last 10 years?

A consent decree is essentially a judicially blessed settlement with long term obligations that can be monitored and enforced by going back to the court that blessed it. The durational limit is thus both contractual and consistent with natural limits on the remedial/equitable powers of courts, which are intended to remediate identified harms rather than set up indefinite and unending judicial oversight of an activity. A ruling is based on judicial fact and law findings and emanates from the court itself, where the remedy is contempt. It declares the parties rights and establishes remedies, which even in injunction cases can have durational limits (or can be amended on future requests of the parties.)

here, there’s little cost to a consent decree since the players have changed (and will change again) and it’s pretty easy to turn allegations of future interference into a factual dispute if you really have to. So it puts things to bed, and is mostly a nothing burger. That said, I’d note that cases like this can reinforce a two way 1a door principle. "Pressuring social media" is probably a short hop skip and jump to limiting or revoking press privileges within an agency.

In addition, in this specific health care context, an additional note. While organizations can and should be able to question/attack "government guidelines", and even to lie about it when doing so, there is an important limit on that -- you can't lie if you are trying to sell something. That's false advertising and it's an unfair trade practice. (By way of example, FWIW, just yesterday the FTC rejected a bid to terminate a probe into certain medical claims - by trade associations/professional societies - relating to gender affirming care. BTW, I'd think the professional societies may have a better case since they don't themselves sell anything). Similarly, without getting too far down the "angels on heads of pins" road, in the FDA context, note that a "substance" is not a "drug" subject to regulation unless you actually make a claim, express or implied, that the "substance" actually does something. Once you do that, there are valid regulatory limits on what you can say about the drug, what you must say if you say anything, how you can say it, and the like. I have little doubt that FDA's traditional authority to address unapproved promotional claims is fully intact.

 

[Aardvark86]

oooh...just saw we're getting one or more opinions this morning. stay tuned. a reminder of a handful of the "sexy" cases pending which were argued before the new year: conversion therapy communication, La VRA, Cox (copyright), First Choice (1A), Slaughter (Humphrey's Exec), NRSC (campaign finance), Hamm (capital punishment)


Also, a mildly interesting argument today raising the question of whether "last mile" delivery workers engage in interstate commerce if they are working solely intrastate but delivering items that traveled in interstate commerce. While it's a narrow question relating to federal arbitration act applicability, it's always interesting to see what the court does with respect to commerce clause matters, as so many regulations are based on the commerce clause.

 

[Aardvark86]

first opinion is a dull-ish case called Rico v US, a criminal sentencing case. 8-1 by Gorsuch. Probation period not automatically tolled/extended during period in which convicted became a fugitive. Alito dissents, not surprisingly given his history as a prosecutor

And Cox - a potentially big copyright infringement case. largely unanimous in result, by Thomas.. A case about whether ISPs can be sued for secondary infringement because people are downloading music via the internet. Massive win for Cox -- mere knowledge that internet users were downloading was insufficient to hold Cox liable as a secondary infringer, and what is required is that the intermediary intend that its platform be used to facilitate infringement and/or the platform be tailored to infringement, a la grokster. $1B damage award goes bye-bye.

Side note - FWiW, from a 'tealeaves" perspective, that "probably" means that Thomas is not writing in First Choice, Slaughter, NRSC, or the capital punishment case from the november session

 

[BigPapaWhit]

And Cox - a potentially big copyright infringement case. largely unanimous in result, by Thomas.. A case about whether ISPs can be sued for secondary infringement because people are downloading music via the internet. Massive win for Cox -- mere knowledge that internet users were downloading was insufficient to hold Cox liable as a secondary infringer, and what is required is that the intermediary intend that its platform be used to facilitate infringement and/or the platform be tailored to infringement, a la grokster. $1B damage award goes bye-bye.

Maybe, I am extrapolating this way too far. Is there there potential applicability to a cell provider (T-Mobiel, AT&T etc) or even maker (Apple, Samsung, etc) being excluded from liability by what harm APP makers may be found guilty? Or is this specific to copyright infringement?

Just imagining a suit where carriers or makers could be held party to harm initiated by apps like Tik-Tok, Facebook, Snapchat, etc. That would/could certainly put pressure on parties to be more involved in what is transpiring within their sphere of influece. Arguably, Apple has shown to be more involved/protective in their sphere.

 

[Aardvark86]

Maybe, I am extrapolating this way too far. Is there there potential applicability to a cell provider (T-Mobiel, AT&T etc) or even maker (Apple, Samsung, etc) being excluded from liability by what harm APP makers may be found guilty? Or is this specific to copyright infringement?

Just imagining a suit where carriers or makers could be held party to harm initiated by apps like Tik-Tok, Facebook, Snapchat, etc. That would/could certainly put pressure on parties to be more involved in what is transpiring within their sphere of influece. Arguably, Apple has shown to be more involved/protective in their sphere.

It is likely limited to copyright infringement, and one of the issues related to safe harbors that were created around infringement. But the court's decision essentially focused on secondary (indirect) infringement and said intent is required, and that intent in essence has to be shown by having a platform tailored to facilitate infringement. (Interestingly, a Soto/Jackson concurrence agreed, but suggested there might be another form of secondary liability via simple "aiding and abetting", but the majority did not agree.)

I suppose at a certain level one might argue that, at the least, cell providers/makers are very unlikely to be sued for copyright infringement on a secondary basis, inasmuch as their platforms are more generally designed.

 

[Aardvark86]

I’m a little discombobulated with a different travel schedule this week boys and girls, but a big couple of days ahead. Tomorrow we get opinions, and Wednesday the birthright citizenship case. (Going to have to listen to that argument later, as I’ll be attending a much more important presentation in Charlottesville — my son defending his aeroeng phd dissertation, which has something to do with flame stabilization in hypersonic engines as they transition from ram to scram.)

Recognizing there’s a separate thread on birthright, a few of my brief thoughts:
1. The administration position isn’t batshit crazy as a technical argument — there was a pretty obvious and dramatic context around the 14a called the civil war, and the “subject to the jurisdiction thereof” language does imo mean something more than being present in a way that the laws can be enforced against you. I actually think it was articulated well in their briefing — it goes to the question of who, legally, one owes their allegiance to, in the 19th century sense of that phrase. And certainly hard to articulate a rational basis for things like birth tourism
2. That said, the history and tradition of interpretation is also long and clear. We’ve built our system around jus soli for a long time now - indeed, for almost the entirety of the time we’ve had a robust immigration and naturalization system. And as a good Catholic and massive fan of jaroslav pelikan, I’m a big believer in the maxim “Lex orandi lex credendi” - the way we practice informs us of what we actually believe about the important questions.
3. And beyond that, imo, what is actually batshit crazy is the executive order under challenge. How one goes from a plausible principle to defining citizenship in the eo through maternal or paternal bloodlines and status is just picked out of the ether. Not only that it reminds me of, say, 1935 or so in certain parts of the world.

 

[UrHuckleberry]

I’m a little discombobulated with a different travel schedule this week boys and girls, but a big couple of days ahead. Tomorrow we get opinions, and Wednesday the birthright citizenship case. (Going to have to listen to that argument later, as I’ll be attending a much more important presentation in Charlottesville — my son defending his aeroeng phd dissertation, which has something to do with flame stabilization in hypersonic engines as they transition from ram to scram.)

Recognizing there’s a separate thread on birthright, a few of my brief thoughts:
1. The administration position isn’t batshit crazy as a technical argument — there was a pretty obvious and dramatic context around the 14a called the civil war, and the “subject to the jurisdiction thereof” language does imo mean something more than being present in a way that the laws can be enforced against you. I actually think it was articulated well in their briefing — it goes to the question of who, legally, one owes their allegiance to, in the 19th century sense of that phrase. And certainly hard to articulate a rational basis for things like birth tourism
2. That said, the history and tradition of interpretation is also long and clear. We’ve built our system around jus soli for a long time now - indeed, for almost the entirety of the time we’ve had a robust immigration and naturalization system. And as a good Catholic and massive fan of jaroslav pelikan, I’m a big believer in the maxim “Lex orandi lex credendi” - the way we practice informs us of what we actually believe about the important questions.
3. And beyond that, imo, what is actually batshit crazy is the executive order under challenge. How one goes from a plausible principle to defining citizenship in the eo through maternal or paternal bloodlines and status is just picked out of the ether. Not only that it reminds me of, say, 1935 or so in certain parts of the world.

Congrats on the future phd. Good luck to him.

And #2 has been my issue all along. Seems no way to go from the prevailing consensus now to “no more birthright” without making up a lot of rules around it on the spot (are we grandfathering citizenship? Why would we if it is no longer constitutional? Would only kids of naturalized citizens be citizens then, since every other citizen I know got citizenship through birth)

 

[Aardvark86]

Congrats on the future phd. Good luck to him.

And #2 has been my issue all along. Seems no way to go from the prevailing consensus now to “no more birthright” without making up a lot of rules around it on the spot (are we grandfathering citizenship? Why would we if it is no longer constitutional? Would only kids of naturalized citizens be citizens then, since every other citizen I know got citizenship through birth)

You know, for as much as the left viewed Robert Bork as the devil, he did have a certain pragmatic sense. During his confirmation hearings he gave an extensive and compelling academic critique of (I think it was) commerce clause jurisprudence/caselaw, but when pushed on what he’d do with it as a judge, replied “nothing” because way too much had been built upon that legal infrastructure.

 

[Aardvark86]

So apologies for the delayed update, but my day got off to a rather inauspicious start when i found that my car had been towed FROM THE GARAGE I PAY TO PARK IN WHEN AT MY APARTMENT IN ARLINGTON GODDAMIT, because I made the "mistake" of forgetting to hang my little tag back up after cleaning the interior. So after some work calls and retrieving the chariot from the vultures, here are my quick reactions to today's decision in Chiles v Salazar, in which the court held (8-1, Gorsuch majority/EK-SS concurrence/KBJ dissent) that Colorado's ban on "conversion talk therapy" violated the 1A.

Let me actually start with the dissent as I think that working backwards is actually easier in this one. KBJ basically took what I thought was a pretty conventional approach and argued that states have long had primary reserved police power authority to define and regulate medical practice, and that characterizing Colorado's law as a form of speech regulation is a bridge too far when viewed in that light. I actually think that position has a fair bit of power.

But 8-1 - how did that happen?! With Soto?! Gorsuch's opinion struck me, sadly, as sorta long on rhetoric and short on clarity in trying to make the argument that this was speech regulation rather than medical practice regulation. But there were a few nuggets there (and more in Kagan's concurrence) that (maybe?) illuminated things a bit. Here, as alleged in the complaint, the ONLY kind of 'therapeutic intervention' that the plaintiff used were words (i.e, literally, speech) - no drugs, no surgeries, nothing physical - and all of the justices were pretty quick to point out that interpreting the statute to prohibit those sorts of "conduct" interventions would be within the state's medical regulatory power. So what about the words? Well, in this case, Colorado only prohibited words pointing in one direction (ie, towards "straightening"), and from there, it was a short hop, skip and jump to viewpoint discrimination. What really brought that home was a passage in Kagan/Soto's concurrence, pointing out that if the state's law were written so as to mandate affirmance of "straightening" and to prohibit counseling involving 'acceptance', it would likewise be viewpoint discrimination. At the end of the day, I suppose that makes some medical sense too -- for what is considered a mental disorder (under existing diagnostic classification code regimens), do you really want to have one and only one permitted approach to the counseling tools, particularly if that one and only one approach was enacted by a bunch of state legislators? Probably not - just as there may be questioning types who can (and maybe should) be straightened out, so too may there be questioning types that can't. At the end of the day, while I'm not in love this decision or this case, I get it.

Three side notes:
1. This was one of those cases where I have a bad taste in my mouth as I think the plaintiff was a real person but largely fake in the sense of not really having standing skin in the game, and the real 'client' was the legal advocacy organization representing her.
2. This means that for the cases argued in the October session, only one is undecided, and the only justice who has not written for the majority in that session is Alito. The case? The Louisiana voting rights/redistricting case. Buckle your seat belts - while I don't know that there's mischief that he could create in the pending VA redistricting initiative, I could foresee him doing something that unshackles some of the southern states from the race-oriented strictures of the VRA.
3. As noted, tomorrow I go to see Jr. in the morning. Probably will shoot to get an argument summary in the birthright citizenship case out later in the week.

 

[FLaw47]

So apologies for the delayed update, but my day got off to a rather inauspicious start when i found that my car had been towed FROM THE GARAGE I PAY TO PARK IN WHEN AT MY APARTMENT IN ARLINGTON GODDAMIT, because I made the "mistake" of forgetting to hang my little tag back up after cleaning the interior. So after some work calls and retrieving the chariot from the vultures, here are my quick reactions to today's decision in Chiles v Salazar, in which the court held (8-1, Gorsuch majority/EK-SS concurrence/KBJ dissent) that Colorado's ban on "conversion talk therapy" violated the 1A.

Let me actually start with the dissent as I think that working backwards is actually easier in this one. KBJ basically took what I thought was a pretty conventional approach and argued that states have long had primary reserved police power authority to define and regulate medical practice, and that characterizing Colorado's law as a form of speech regulation is a bridge too far when viewed in that light. I actually think that position has a fair bit of power.

But 8-1 - how did that happen?! With Soto?! Gorsuch's opinion struck me, sadly, as sorta long on rhetoric and short on clarity in trying to make the argument that this was speech regulation rather than medical practice regulation. But there were a few nuggets there (and more in Kagan's concurrence) that (maybe?) illuminated things a bit. Here, as alleged in the complaint, the ONLY kind of 'therapeutic intervention' that the plaintiff used were words (i.e, literally, speech) - no drugs, no surgeries, nothing physical - and all of the justices were pretty quick to point out that interpreting the statute to prohibit those sorts of "conduct" interventions would be within the state's medical regulatory power. So what about the words? Well, in this case, Colorado only prohibited words pointing in one direction (ie, towards "straightening"), and from there, it was a short hop, skip and jump to viewpoint discrimination. What really brought that home was a passage in Kagan/Soto's concurrence, pointing out that if the state's law were written so as to mandate affirmance of "straightening" and to prohibit counseling involving 'acceptance', it would likewise be viewpoint discrimination. At the end of the day, I suppose that makes some medical sense too -- for what is considered a mental disorder (under existing diagnostic classification code regimens), do you really want to have one and only one permitted approach to the counseling tools, particularly if that one and only one approach was enacted by a bunch of state legislators? Probably not - just as there may be questioning types who can (and maybe should) be straightened out, so too may there be questioning types that can't. At the end of the day, while I'm not in love this decision or this case, I get it.

Four side notes:
1. This was one of those cases where I have a bad taste in my mount as I think the plaintiff was a real person but largely fake in the sense of not really having standing skin in the game, and the real 'client' was the legal advocacy organization representing her.
2. This means that for the cases argued in the October session, only one is undecided, and the only justice who has not written for the majority in that session is Alito. The case? The Louisiana voting rights/redistricting case. Buckle your seat belts - while I don't know that there's mischief that he could create in the pending VA redistricting initiative, I could foresee him doing something that unshackles some of the southern states from the race-oriented strictures of the VRA.
3. As noted, tomorrow I go to see Jr. in the morning. Probably will shoot to get an argument summary in the birthright citizenship case out later in the week.

Can you help me understand how a conversion therapy ban is unconstitutional but it's perfectly legal to force abortion providers to regurgitate anti-abortion verbiage to patients and force them to to see ultrasound photos? I'm not trying to be dense here, I really don't understand the difference and if this was an 8-1 ruling I do think there must be something I'm missing.

 

[Aardvark86]

Can you help me understand how a conversion therapy ban is unconstitutional but it's perfectly legal to force abortion providers to regurgitate anti-abortion verbiage to patients and force them to to see ultrasound photos? I'm not trying to be dense here, I really don't understand the difference and if this was an 8-1 ruling I do think there must be something I'm missing.

Certainly some tension with Dobbs in that respect, and as I said, I'm not in love with the whole speech/conduct line.

Haven't really considered your question, so just spitballing here, but off the top of my head, it may be that in the Dobbs/abortion context, one might argue that: (i) the antiabortion counseling is adjunct to (or at least "more" adjunct to) an actual physical medical intervention for a physical/medical condtion (i.e., 'conduct') than the (IMO, perhaps phony-theoretical) "counseling only" intervention (ie, 'speech') for a mental disorder of Chiles; (ii) there is reason to believe - perhaps/hopefully very strong reason to believe - that in the context of a patient actually seeking an abortion, the "pro abortion" counseling has already occurred and thus, the case for viewpoint discrimination is arguably a little weaker; and/or (iii) adjunct to (ii), in any event, the pro-abortion counseling isn't forbidden as its analog was in colorado.

 

[FLaw47]

Certainly some tension with Dobbs in that respect, and as I said, I'm not in love with the whole speech/conduct line.

Haven't really considered your question, so just spitballing here, but off the top of my head, it may be that in the Dobbs/abortion context, one might argue that: (i) the antiabortion counseling is adjunct to (or at least "more" adjunct to) an actual physical medical intervention for a physical/medical condtion (i.e., 'conduct') than the (IMO, perhaps phony-theoretical) "counseling only" intervention (ie, 'speech') for a mental disorder of Chiles; (ii) there is reason to believe - perhaps/hopefully very strong reason to believe - that in the context of a patient actually seeking an abortion, the "pro abortion" counseling has already occurred and thus, the case for viewpoint discrimination is arguably a little weaker; and/or (iii) adjunct to (ii), in any event, the pro-abortion counseling isn't forbidden as its analog was in colorado.

I appreciate your help! I've gotta say, some of this stuff is difficult for a guy who thinks he's pretty logical and has strong impulses on things being right or wrong. I describe myself as trying to "follow the spirit of the law to the letter" and really struggle with some of these (seemingly) trivial distinctions that show up in front of the court. Perhaps everyone was wrong about me being a (hypothetically) good lawyer just because I love bickering.

 

[Aardvark86]

I appreciate your help! I've gotta say, some of this stuff is difficult for a guy who thinks he's pretty logical and has strong impulses on things being right or wrong. I describe myself as trying to "follow the spirit of the law to the letter" and really struggle with some of these (seemingly) trivial distinctions that show up in front of the court. Perhaps everyone was wrong about me being a (hypothetically) good lawyer just because I love bickering.

I'm sure you're just fine - all it takes is a client to fight for, right? Honestly, when you first asked the question, my initial reaction was sorta 'yeah, wtf is with that?!' Again though, when you get these cases where the plaintiff is so "theoretically perfect" I am usually pretty skeptical that the court should have taken the case under its traditional standing doctrines.

 

[FLaw47]

I'm sure you're just fine - all it takes is a client to fight for, right? Honestly, when you first asked the question, my initial reaction was sorta 'yeah, wtf is with that?!' Again though, when you get these cases where the plaintiff is so "theoretically perfect" I am usually pretty skeptical that the court should have taken the case under its traditional standing doctrines.

How do you feel about the "standing" requirement in general? As a layman (I'm not a lawyer, don't know if I gave that impression), it feels silly to need a victim to challenge a law for being unconstitutional. But that's how we do things and I agree that we've seen a lot of cases recently where the plaintiff having standing was very questionable.

 

[Aardvark86]

How do you feel about the "standing" requirement in general? As a layman (I'm not a lawyer, don't know if I gave that impression), it feels silly to need a victim to challenge a law for being unconstitutional. But that's how we do things and I agree that we've seen a lot of cases recently where the plaintiff having standing was very questionable.

it's critical. as much as some might not like lifetime appointed judges issuing decisions in real disputes, the last thing we want to empower them to do is to issue policy decisions in situations where there's no real skin in the game. If anybody gets to make those calls, it's the politically accountable branches. that's what lobbyists are for.

I don't mean to engage in whataboutism, but the liberalization of court access/erosion of standing doctrines, and the rise of legal advocacy organizations in the 60s, begat a series of tools that are now being used by right leaning organizations. Fun side note - at my law school, there was a course called 'legal advocacy' taught by one of the 60s warrior refugees, where for the final exam, the students had to bring a lawsuit on some policy advocacy issue. Often those were mundane things, like differential dry cleaning prices for mens and womens shirts, but the high water mark of liberal standing doctrine was a SCOTUS case called US v SCRAP, which was an environmental case brought by his students as their final project.

 

[BigPapaWhit]

So apologies for the delayed update, but my day got off to a rather inauspicious start when i found that my car had been towed FROM THE GARAGE I PAY TO PARK IN WHEN AT MY APARTMENT IN ARLINGTON GODDAMIT, because I made the "mistake" of forgetting to hang my little tag back up after cleaning the interior. So after some work calls and retrieving the chariot from the vultures, here are my quick reactions to today's decision in Chiles v Salazar, in which the court held (8-1, Gorsuch majority/EK-SS concurrence/KBJ dissent) that Colorado's ban on "conversion talk therapy" violated the 1A.

Let me actually start with the dissent as I think that working backwards is actually easier in this one. KBJ basically took what I thought was a pretty conventional approach and argued that states have long had primary reserved police power authority to define and regulate medical practice, and that characterizing Colorado's law as a form of speech regulation is a bridge too far when viewed in that light. I actually think that position has a fair bit of power.

But 8-1 - how did that happen?! With Soto?! Gorsuch's opinion struck me, sadly, as sorta long on rhetoric and short on clarity in trying to make the argument that this was speech regulation rather than medical practice regulation. But there were a few nuggets there (and more in Kagan's concurrence) that (maybe?) illuminated things a bit. Here, as alleged in the complaint, the ONLY kind of 'therapeutic intervention' that the plaintiff used were words (i.e, literally, speech) - no drugs, no surgeries, nothing physical - and all of the justices were pretty quick to point out that interpreting the statute to prohibit those sorts of "conduct" interventions would be within the state's medical regulatory power. So what about the words? Well, in this case, Colorado only prohibited words pointing in one direction (ie, towards "straightening"), and from there, it was a short hop, skip and jump to viewpoint discrimination. What really brought that home was a passage in Kagan/Soto's concurrence, pointing out that if the state's law were written so as to mandate affirmance of "straightening" and to prohibit counseling involving 'acceptance', it would likewise be viewpoint discrimination. At the end of the day, I suppose that makes some medical sense too -- for what is considered a mental disorder (under existing diagnostic classification code regimens), do you really want to have one and only one permitted approach to the counseling tools, particularly if that one and only one approach was enacted by a bunch of state legislators? Probably not - just as there may be questioning types who can (and maybe should) be straightened out, so too may there be questioning types that can't. At the end of the day, while I'm not in love this decision or this case, I get it.

Three side notes:
1. This was one of those cases where I have a bad taste in my mount as I think the plaintiff was a real person but largely fake in the sense of not really having standing skin in the game, and the real 'client' was the legal advocacy organization representing her.
2. This means that for the cases argued in the October session, only one is undecided, and the only justice who has not written for the majority in that session is Alito. The case? The Louisiana voting rights/redistricting case. Buckle your seat belts - while I don't know that there's mischief that he could create in the pending VA redistricting initiative, I could foresee him doing something that unshackles some of the southern states from the race-oriented strictures of the VRA.
3. As noted, tomorrow I go to see Jr. in the morning. Probably will shoot to get an argument summary in the birthright citizenship case out later in the week.

Maybe, I am showing my naivete but this decision seems to be of much smaller impact than what some would suggest. I have not read the opinion just some news articles and your post. I would think Colorado (and other states) could attack this is through licensure or medical boards without infringing on free speech rights. The Court have even alluded to this.

The other thing, being the way this country works, let the market decide. One would think that a counselor or therapist that specializes on such a narrow scope would have a limited market, limited reach, and ultimately limited harm, esp when you consider the overall numbers of people in the us.

 

[Aardvark86]

Maybe, I am showing my naivete but this decision seems to be of much smaller impact than what some would suggest. I have not read the opinion just some news articles and your post. I would think Colorado (and other states) could attack this is through licensure or medical boards without infringing on free speech rights. The Court have even alluded to this.

The other thing, being the way this country works, let the market decide. One would think that a counselor or therapist that specializes on such a narrow scope would have a limited market, limited reach, and ultimately limited harm, esp when you consider the overall numbers of people in the us.

It’s not a crazy thought, though I suspect for differnt reasons. I just have my doubts that there are that many plaintiffs out there given the seemingly phony one here.

I don’t know that regulation is much of an option. These folks are already licensed and it’s not like they condition the license on what’s been prohibited. But hey, it’s Colorado, and it’s not like they haven’t tried that before after losing (eg, masterpiece cake shop)

 

[BigPapaWhit]

It’s not a crazy thought, though I suspect for differnt reasons. I just have my doubts that there are that many plaintiffs out there given the seemingly phony one here.

I don’t know that regulation is much of an option. These folks are already licensed and it’s not like they condition the license on what’s been prohibited. But hey, it’s Colorado, and it’s not like they haven’t tried that before after losing (eg, masterpiece cake shop)

We are a nation that has given license to snake oil salesmen, the supplement industry, chiropractors, and faith healers just to name a few. Should we just add conversion therapists to the lot? Of course this is mostly tongue in cheek. I have nothing against chiropractors.

All that being said, I wonder in the post Covid US and current Kennedy MAHA movement where popular opinion will lean for health standards? The states or the Fed?

 

[Aardvark86]

We are a nation that has given license to snake oil salesmen, the supplement industry, chiropractors, and faith healers just to name a few. Should we just add conversion therapists to the lot? Of course this is mostly tongue in cheek. I have nothing against chiropractors.

All that being said, I wonder in the post Covid US and current Kennedy MAHA movement where popular opinion will lean for health standards? The states or the Fed?

As I might have mentioned, the more I think about it, the more this case strikes me as analogous to the case involving White House driven social media suppression of vaccine criticism.

 

[GDead_Tiger]

Sounds like the government is getting the crap kicked out of it in this birthright citizenship case