SCOTUS Term 25-26

[Aardvark86]

Thomas being Thomas?

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

K? I think quite the contrary. He's very much an executive power guy.

BTW, looking at the gorsuch opinion now. He is savaging the liberal justices for the inconsistency of their statutory interpretive approach here with their dissents in other major questions cases, even though they are aligned on the result. A pretty strong defense of the major questions doctrine, which he believes is the analytical key here. But beyond that, for those who like to suggest Thomas/Alito are 'in the bag,' it's a pretty good illustration of how that door swings both ways.

 

[fatpiggy]

Wharton estimates $175B may be due in refunds.

Trump tariffs: Revenue at risk from Supreme Court

 

[Aardvark86]

FWIW, in the 'where do we go from here' realm...

https://www.aei.org/op-eds/trump-has-many-options-if-the-supreme-court-strikes-down-tariffs/

 

[dpic73]

Julian Mark
In his concurring opinion, Justice Neil M. Gorsuch rejected the administration’s argument that the president has “substantial discretion” over tariffs. History “does not support the notion that Presidents have traditionally enjoyed so much power,” Gorsuch wrote. “More nearly, history refutes it.”

“Americans fought the Revolution in no small part because they believed that only their elected representatives (not the King, not even Parliament) possessed authority to tax them,” he wrote. “The framers gave Congress alone ‘access to the pockets of the people.’”

 

[bdgan]

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

In that case there could be a class action suit from consumers to recover tariffs built into the prices they paid. That includes the illegal tariffs imposed by Biden on Steel.

 

[BigPapaWhit]

K? I think quite the contrary. He's very much an executive power guy.

BTW, looking at the gorsuch opinion now. He is savaging the liberal justices for the inconsistency of their statutory interpretive approach here with their dissents in other major questions cases, even though they are aligned on the result. A pretty strong defense of the major questions doctrine, which he believes is the analytical key here. But beyond that, for those who like to suggest Thomas/Alito are 'in the bag,' it's a pretty good illustration of how that door swings both ways.

Doh! I'll defer to you. Just saying K seems more willing to entertain a different line of thinking did not mean to infer he would go along with it, lol. Sorry, if my statement implied anything else.

Edit to add. I have not read decisions on this case.

 

[dandeman330]

In that case there could be a class action suit from consumers to recover tariffs built into the prices they paid. That includes the illegal tariffs imposed by Biden on Steel.

If those are deemed illegal then they should be as well. I believe some of tariffs were not considered illegal such as ones that are truly related to national security. Computer chips, pharmaceuticals and maybe even steel would qualify. If they don't then the any tariffs levied need to come from Congress passing a law.

If company increased their prices due to tariffs, the consumer is not entitled to a refund from the government. The consumer would have to attempt to recoup those costs from the seller.

 

[fatpiggy]

Trumps press conference is amazing! He is PISSSED, a bit unhinged. lol.

 

[fatpiggy]

 

[Paw Pad]

Whether you are a dem or republican, one thing about this decision is that the LAWYERS will benefit from all of the litigation that is coming from everyone. As usual, they are the ones who are the winners in this. The decision is not a yes or no, it is totally ambiguous, like all the money that has been collected so far, what is to become of that: keep, send back, or just go to another court to settle. This will take time and money;most of which we ALL pay for.

 

[UrHuckleberry]

 

[dandeman330]

View attachment 1193548

100%

 

[Aardvark86]

Doh! I'll defer to you. Just saying K seems more willing to entertain a different line of thinking did not mean to infer he would go along with it, lol. Sorry, if my statement implied anything else.

Edit to add. I have not read decisions on this case.

no worries; it's actually one of the things that surprises me about kav. while i think he conducts himself at arguments very well, there is a common theme to a lot of his questions relating to 'how will a president deal with real-world difficult situations' that ultmately comes through in his opinions too.

 

[Aardvark86]

Whether you are a dem or republican, one thing about this decision is that the LAWYERS will benefit from all of the litigation that is coming from everyone. As usual, they are the ones who are the winners in this. The decision is not a yes or no, it is totally ambiguous, like all the money that has been collected so far, what is to become of that: keep, send back, or just go to another court to settle. This will take time and money;most of which we ALL pay for.

while that's undoubtedly true, i don't think trump did this for the lawyers.

and ftr, it's actually pretty routine for the scotus to let the lower courts sort out the mechanics of remedies. indeed, it's when they've decided to take on that function themselves that they've been historically too far out over their skis.

 

[Aardvark86]

View attachment 1193548

i just hope that folks remember this passage when my boy NG votes against something they like.

But he's spot on. I still hold out hope that this is the long term arc of the Roberts court. the big question is whether putative legislators will accept the gift given to them or continue to defer to party.

 

[LafayetteBear]

But beyond that, for those who like to suggest Thomas/Alito are 'in the bag,' it's a pretty good illustration of how that door swings both ways.

How so? I'm having difficulty recalling an occasion in which Alito or Thomas ruled against Trump. There must be at least one example, but I can't think of it off the top of my head.

 

[LafayetteBear]

In that case there could be a class action suit from consumers to recover tariffs built into the prices they paid. That includes the illegal tariffs imposed by Biden on Steel.

1. Why the initial cap on "Steel?" You were referring to the metal, no?

2. I don't recall Biden imposing tariffs on imported steel, but my assumptions is that, if he did so, the tariff was limited to just that one commodity, and not to any and all imports. Contrast that with Trump imposing sweeping tariffs on all trading partners, and premising that on "emergency" authority under IEEPA. He should have known that wouldn't work. (Check that. His advisors should have known. He is too dumb to comprehend the legal analysis.) It was apparent that Trump's sweeping tariffs were sunk back when the Supreme Court had a hearing on this issue, and Amy Coney Barrett started asking questions about the breadth of these tariffs in light of the IEEPA provision authorizing "emergency" powers. It was obvious then that a Court majority had finally reached its limit with respect to Trump claiming an "emergency" in seeking to exercise powers granted to Congress.

3. Kavanaugh's dissent is pretty funny. He wrote that the immediate effect of the ruling could be “substantial” because the government “may be required to refund billions of dollars to importers who paid the IEEPA tariffs, even though some importers may have already passed on costs to consumers or others.” AND??!! Either Trump had the authority under IEEPA to impose the tariffs or he did not. The consequences of his having exercised such authority are not a controlling factor. They should not really be a factor at all. It's a question of statutory interpretation and, if the Justices want to go there, an issue of constitutional interpretation. Aside from that, the assumption that importers "may have already passed on costs to consumers or others" is highly speculative. Hence, Kavanaugh's use of the word "may." Kavanaugh is no dummy, but he didn't cover himself in glory here.

 

[LafayetteBear]

Whether you are a dem or republican, one thing about this decision is that the LAWYERS will benefit from all of the litigation

What's wrong with THAT?! That works for me.

 

[Aardvark86]

How so? I'm having difficulty recalling an occasion in which Alito or Thomas ruled against Trump. There must be at least one example, but I can't think of it off the top of my head.

Bear man you really missed the boat. I’m talking about kagan/jackson/soto. Did you read the Gorsuch opinion?

 

[bdgan]

If those are deemed illegal then they should be as well. I believe some of tariffs were not considered illegal such as ones that are truly related to national security. Computer chips, pharmaceuticals and maybe even steel would qualify. If they don't then the any tariffs levied need to come from Congress passing a law.

If company increased their prices due to tariffs, the consumer is not entitled to a refund from the government. The consumer would have to attempt to recoup those costs from the seller.

OK but the court didn't say which tariffs were legal vs illegal. Do we need cases for each one?

In your example it's a huge windfall for the companies/sellers and the end consumer gets screwed. That doesn't sound reasonable to me.

 

[dandeman330]

OK but the court didn't say which tariffs were legal vs illegal. Do we need cases for each one?

In your example it's a huge windfall for the companies/sellers and the end consumer gets screwed. That doesn't sound reasonable to me.

I would think you would need a case for each one. It might hold up on certain items but he charged it indiscriminately. There was no national security issue on charging tariffs on bananas or coffee for example and they should never have implemented. Computer chips, steel, medicine etc could be considered legal.

Yes, the consumer ultimately got screwed because the president imposed a tariff that was illegal. Businesses that paid the tariff chose to pass those costs to the consumer. The company has the legal recourse since they paid the tariffs to the government.

The business made decision to raise their price to cover the cost of the tariff. The consumer then made an economic decision to buy the product at the listed price. They weren't forced to buy the product.

 

[Moogy]

How so? I'm having difficulty recalling an occasion in which Alito or Thomas ruled against Trump. There must be at least one example, but I can't think of it off the top of my head.

The door definitely swings both ways ... Thomas and Alito fluff Trump, and Trump & his financiers fluff Thomas and Alito. Both. Ways.

 

[Moogy]

3. Kavanaugh's dissent is pretty funny. He wrote that the immediate effect of the ruling could be “substantial” because the government “may be required to refund billions of dollars to importers who paid the IEEPA tariffs, even though some importers may have already passed on costs to consumers or others.” AND??!! Either Trump had the authority under IEEPA to impose the tariffs or he did not. The consequences of his having exercised such authority are not a controlling factor. They should not really be a factor at all. It's a question of statutory interpretation and, if the Justices want to go there, an issue of constitutional interpretation. Aside from that, the assumption that importers "may have already passed on costs to consumers or others" is highly speculative. Hence, Kavanaugh's use of the word "may." Kavanaugh is no dummy, but he didn't cover himself in glory here.

Hey, that's our preeminent legal minds at work ... "this action was so bad, that to undo it would be incredibly complex, so let's just let the action go, mmkay? What could go wrong following this logic?"

 

[LafayetteBear]

Bear man you really missed the boat. I’m talking about kagan/jackson/soto. Did you read the Gorsuch opinion?

The opinion just became available today, and I am busy with client work, so I have not read anything other than news reports excerpting small portions of Roberts' and Kavanaugh's opinions. Your reference to the "door swinging both ways" was in the same sentence as your reference to Alito and Thomas. But now you have clarified that Gorsuch (and perhaps you) believe the liberal justices were inconsistent in their interpretation of various statutes. How so? Have they not generally been far less expansive and deferential to Trump's continuing claim of emergency powers? How is that inconsistent? Trump has yet to find an "emergency" he does not like, or attempt to exploit for his own benefit. He perceives "emergencies" where no rational person does.

 

[bdgan]

View attachment 1193548

That's fine but the collective wisdom is an oxymoron these days.

 

[bdgan]

1. Why the initial cap on "Steel?" You were referring to the metal, no?

2. I don't recall Biden imposing tariffs on imported steel, but my assumptions is that, if he did so, the tariff was limited to just that one commodity, and not to any and all imports. Contrast that with Trump imposing sweeping tariffs on all trading partners, and premising that on "emergency" authority under IEEPA. He should have known that wouldn't work. (Check that. His advisors should have known. He is too dumb to comprehend the legal analysis.) It was apparent that Trump's sweeping tariffs were sunk back when the Supreme Court had a hearing on this issue, and Amy Coney Barrett started asking questions about the breadth of these tariffs in light of the IEEPA provision authorizing "emergency" powers. It was obvious then that a Court majority had finally reached its limit with respect to Trump claiming an "emergency" in seeking to exercise powers granted to Congress.

3. Kavanaugh's dissent is pretty funny. He wrote that the immediate effect of the ruling could be “substantial” because the government “may be required to refund billions of dollars to importers who paid the IEEPA tariffs, even though some importers may have already passed on costs to consumers or others.” AND??!! Either Trump had the authority under IEEPA to impose the tariffs or he did not. The consequences of his having exercised such authority are not a controlling factor. They should not really be a factor at all. It's a question of statutory interpretation and, if the Justices want to go there, an issue of constitutional interpretation. Aside from that, the assumption that importers "may have already passed on costs to consumers or others" is highly speculative. Hence, Kavanaugh's use of the word "may." Kavanaugh is no dummy, but he didn't cover himself in glory here.

1. I'm not arguing the law. I support tariffs but I think Trump went too far. I also don't think he would have received congressional approval.
2. Biden imposed new tariffs on Chinese steel and Mexican Aluminum in 2024. I agree they weren't as far reaching
3. I don't like the court's decision because it opens everything up for 5 years of lawsuits. Ironically it is likely to screw over everyday Americans. It sounds like importers get a refund, consumers don't get anything, and the country is $170 billion deeper in debt.

 

[bdgan]

How so? I'm having difficulty recalling an occasion in which Alito or Thomas ruled against Trump. There must be at least one example, but I can't think of it off the top of my head.

How often have Kagen, Sotomayor, or Jackson voted against Biden

 

[bdgan]

What's wrong with THAT?! That works for me.

The more lawsuits the better?

 

[Aardvark86]

The opinion just became available today, and I am busy with client work, so I have not read anything other than news reports excerpting small portions of Roberts' and Kavanaugh's opinions. Your reference to the "door swinging both ways" was in the same sentence as your reference to Alito and Thomas. But now you have clarified that Gorsuch (and perhaps you) believe the liberal justices were inconsistent in their interpretation of various statutes. How so? Have they not generally been far less expansive and deferential to Trump's continuing claim of emergency powers? How is that inconsistent? Trump has yet to find an "emergency" he does not like, or attempt to exploit for his own benefit. He perceives "emergencies" where no rational person does.

No worries. Just read it. Gorsuch lays it out better than I ever could. And tbc, with respect to each of his colleagues.

 

[Aardvark86]

Hey, that's our preeminent legal minds at work ... "this action was so bad, that to undo it would be incredibly complex, so let's just let the action go, mmkay? What could go wrong following this logic?"

Yep that dog didn’t hunt.

 

[Aardvark86]

 

[Aardvark86]

So as much as the tariff cases have spun off some drama, we could have some more interesting stuff coming down the pike, with two opinion days scheduled for this week. (Or, maybe not, as predicting which opinions come when is usually a fraught exercise.) But I'd note that there are four cases open from the October term, with three justices not having written (Thomas, Alito, Gorsuch). And of the three cases, we have an interesting 6th amendment right to counsel case (my guess is Alito as the former prosecutor), a federal tort claims case, a case involving whether states can ban "conversion therapy", and the Louisiana redistricting case which has the potential to retrench on Voting Rights Act claims. Will be really interesting to see which of those three cases Thomas and Gorsuch get. Usually I'd expect Louisiana from the chief, but given his majority opinion in the tariff case, maybe not. From the November term, things are pretty wide open, but most of the cases involve less politically charged issues, and it's entirely possible that those cases are all we see.

 

[FLaw47]

So as much as the tariff cases have spun off some drama, we could have some more interesting stuff coming down the pike, with two opinion days scheduled for this week. (Or, maybe not, as predicting which opinions come when is usually a fraught exercise.) But I'd note that there are four cases open from the October term, with three justices not having written (Thomas, Alito, Gorsuch). And of the three cases, we have an interesting 6th amendment right to counsel case (my guess is Alito as the former prosecutor), a federal tort claims case, a case involving whether states can ban "conversion therapy", and the Louisiana redistricting case which has the potential to retrench on Voting Rights Act claims. Will be really interesting to see which of those three cases Thomas and Gorsuch get. Usually I'd expect Louisiana from the chief, but given his majority opinion in the tariff case, maybe not. From the November term, things are pretty wide open, but most of the cases involve less politically charged issues, and it's entirely possible that those cases are all we see.

What's the theory of why a state cannot ban conversion therapy but they can ban gender affirming care?

 

[Aardvark86]

What's the theory of why a state cannot ban conversion therapy but they can ban gender affirming care?

The arguments imo are pretty much the same. Can they define medical care as part of police regulatory powers or is it banning speech. It’s been a while but I do seem to recall some further fine distinction being advanced in terms of just what was specifically being challenged, but didn’t feel particularly persuasive as a distinction

 

[FLaw47]

The arguments imo are pretty much the same. Can they define medical care as part of police regulatory powers or is it banning speech. It’s been a while but I do seem to recall some further fine distinction being advanced in terms of just what was specifically being challenged, but didn’t feel particularly persuasive as a distinction

IANAL but unless they're allowed to consider the balance of harms as the distinction (which cuts in precisely the opposite direction of what social conservatives want to do) and distinction seems extremely arbitrary v

 

[Aardvark86]

So two opinions today, neither particularly sexy.

A diversity jurisdiction case from the November term authored by Justice Sotomayor for a unanimous court.

And, a 5-4 decision by Justice Thomas in the FTCA case relating to the alleged intentional failure to delivery mail, ruling that the government enjoys sovereign immunity not waived via FTCA. This was one of the cases from the October, so if you're into reading tea leaves, it probably means that Justice Thomas is not writing either the redistricting or conversion therapy cases. Originally, I thought (and probably continue to think) Alito will probably get the outstanding 6th amendment right to counsel case from October, but it would not be entirely surprising if Gorsuch did given his civil liberties bent in criminal cases. The more I think about it, the more I think the Chief is going to write in the Louisiana VRA case. So either Gorsuch or Alito in the conversion therapy case.

 

[Aardvark86]

Back to business boys and girls.

Today, we have Villareal, the Sixth Amendment case, more or less unanimously by...Jackson!!!! Tea leaves be damned! Court permissibly restricted defendant's overnight discussions of his testimony with counsel. That opens up all kinds of possibilities for mischief for the redistricting and conversion therapy cases, with Gorsuch and Alito being the only justices who have not written a majority opinion from the October argument session.

And...Geo Group, relating to government contractors' invocation of sovereign immunity, by Kagan.

 

[Aardvark86]

Reminder for those interested in 2A issues that today we have the oral argument in the case about whether a state can restrict gun ownership for persons with controlled substance convictions. i'm a little busy mid day today, but might listen to this one on the drive to DC tomorrow.

 

[fatpiggy]

 

[Aardvark86]

That makes a certain amount of sense given the pendency of the case on this issue, assuming we’re talking about a stay. That said I sorta figured the final opinion would come until later in the term, and the ca case would then likely be remanded to process consistent with the wv (?) case

Edit: just pulled the per curiam opinion. Way more than the above, and will need to take a harder look. This opinion is a bfd