MOTHER JONES TO THE LEFT: STOP JONESING ABOUT BRETT KAVANAUGH

When extreme liberals have lost Mother Jones...

9 high-stakes issues the Supreme Court will take up this coming term

Though written from a left wing perspective, this article is useful in outlining some significant cases on the docket in the upcoming Supreme Court term.

Chief Justice Roberts's Long, Longer, and Longest Games

I have been saying something eerily similar about Chief Justice John Roberts for a long time. One point this article notes that I had not considered is reading the Chief Justice's concurrence on Citizens United as a template for how he would approach cases like Casey and possibly Roe as well. 

Court won’t block order requiring reinstatement of “remain in Mexico” policy

I have been telling folks that complain about SCOTUS procedurals that on merits cases when the rubber meets the road, cases like this will usually be at least 6-3. And when the eviction moratorium issue became a case based on merits rather than procedural, I figured when we got past procedurals and to merits it would go precisely this way. 

SCOTUS also refused to hear a Biden administration plea for reprieve on a district court's order requiring it to reinstate the Trump administration's "remain in Mexico" policy requiring asylum seekers to stay in Mexico while they wait for a hearing in U.S. immigration court. That one was also 6-3. I am not surprised there either. I was kinda amused that DHS vs Regents was cited to bolster the ruling since conservatives whined a lot on the Chief Justice John Roberts rationale there; namely, that the Trump administration had not properly explained its decision to end DACA. Well, the court just struck the Biden administration with the same sword ruling that the Biden administration was unlikely to prevail in court in demonstrating that its decision to end the "stay in Mexico" policy was not "arbitrary and capricious" rather than reasonable and reasonably explained. 

I wonder of those cheering the Chief Justice's application of the Administrative Procedures Act on the Trump administration's attempts to end DACA will be similarly euphoric on Biden's administration getting its wings clipped on its attempts to end the Trump era "stay in Mexico" policy. Or if those booing the DACA case and Chief Justice Roberts on DACA will similarly boo on this one. In neither case is that likely since the hyper partisans among us are rarely consistent and non-hypocritical. But I digress. 

Guess who may be the last hope for Roe v Wade

I do not see either Roberts nor Kavanaugh going against gutting Casey's undue burden criteria. Whether they would overturn Roe is another issue but Roe is a toothless symbol now. The power is in Casey and the lynchpin to Casey is undue burden. 

Chief Justice Roberts in a dissent from the 2020 term more or less laid out for the right the way to go about this and it is by going after the undue burden doctrine. Will the right finally get a clue and do this or will they continue to beclown themselves by wasting time and energy on Roe for a symbolic "gotcha" more likely to blow up in their face than not? 

Ignore Roe, focus on Casey, and aim at undermining undue burden or getting it clarified to where it is so strict it is functionally next to useless. That is the smart way to play chess on this. 

Points to Ponder:

If, even as the price to be paid for a fifth vote, I ever joined an opinion for the Court that began: 'The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity,' I would hide my head in a bag. The Supreme Court of the United States has descended from the disciplined legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of the fortune cookie. [Justice Antonin Scalia (circa June 26, 2015)]

Supreme Court Rejects Home Searches to Seize Firearms by Police Under "Community Caretaker" Doctrine

This 9-0 ruling by the high court is encouraging.

Grassley to DoJ: Why has no one been charged with crimes over false Kavanaugh allegations?

Chief Justice John Roberts won’t preside over the Senate impeachment trial

With the absence of the only government official constitutionally required to preside over impeachment trials involving a president, this time wasting farce is delegitimized at the outset.

Alex the Chick on Stare Decisis

Supreme Court says Justice Ruth Bader Ginsburg has died of metastatic pancreatic cancer at age 87

"None Dare Call It A Volokh Conspiracy" Dept.

To revisit an old segment once run on this humble website at sundry times and in divers manners, we have the this recent piece on the latest list of Supreme Court justice candidates announced by President Trump. Just a snippet to whet the appetite, click on the above link for the rest...

In May 2016, President Trump released his first short list for the Supreme Court. At the time, I was cautiously optimistic about the eleven names on the list. There were two names missing from that list: Neil Gorsuch and Brett Kavanaugh. At the time, those omissions did not bother me. But it surely bothered these two judges, and their boosters. In September 2016, Trump added ten more names to the list, bringing the total to twenty-one. Neil Gorsuch was added to the list. Brett Kavanaugh was not. In January 2017, Trump nominated Gorsuch to the Supreme Court. Fast forward to November 25, 2017, President Trump added five new names to the list. Now, Kavanaugh was added to the list. At this point, it was obvious why the five other names were added: to bring Kavanaugh into the fold. And after Justice Kennedy retired in June 2018, Kavanaugh was tapped to the Supreme Court...

Roberts Isn’t a Liberal. He’s a Perfectionist Who Wants to Win

This is a response to the following posting. My words are in regular font.

Shawn, a fine is not a tax.

You are forgetting a few things. For example, that if the court is asked to decide between two possible readings and one of those readings will save an statute from unconstitutionality, they will as a rule go with the one that saves the statute. This principle of American constitutional law goes back explicitly to at least the days of Joseph Story who sat on the Marshall Court and who wrote in one of his decisions that "[n]o court ought, unless the terms of an act rendered it unavoidable, to give a construction to it which should involve a violation, however unintentional, of the constitution."{1} Justice Oliver Wendell Holmes made the same point a century later writing "the rule is settled that as between two possible interpretations of a statute, by one of which it would be unconstitutional and by the other valid, our plain duty is to adopt that which will save the Act."{2} For "every reasonable construction must be resorted to, in order to save a statute from unconstitutionality."{3} None of this is new.

As for your claim a fine is not a tax, you obviously are not familiar with The Child Labour Cases most notably Bailey v. Drexel Furniture Co{4} where the Court determined that a purported tax levied by the statute was actually a penalty disguised as a tax. Also applicable here is the License Tax Cases{5} where the Court held that fees assessed by federal licencees for selling lottery and alcohol products were permissible under the federal taxing power despite their classification as a "fee."{6} And in New York v. United States (1992), the Court upheld as a tax something referred to not as a tax but instead as a "surcharge." For as the Court explained in the syllabus of yet another case, "[a]n exaction which in reality is a penalty cannot be converted into a tax by so naming it; its purpose and operation determine its character."{7}

In other words, your simplistic unsubstantiated assertion does not stand.

Notes:

{1} Parsons v. Bedford, 3 Pet. 433, 448–449 (1830)

{2} Blodgett v. Holden, 275 U. S. 142, 148 (1927)

{3} Hooper v. California, 155 U. S. 648, 657 (1895)

{4} Bailey v. Drexel Furniture Co., 259 U.S. 20 (1922)

{5} License Tax Cases, 72 U.S. 5 Wall. 462 462 (1866)

{6} Which is in essence what you are claiming above.

{7} United States v. Constantine, 296 U.S. 287 (1935)

7 Times John Roberts Was A Leftist Hack

Briefly...

1) The clownservatard right were the ones engaging in judicial activism by refusing to sever the mandate in NFIB v Sebilius and instead pretending it could not be severed (which was a lie) all so they could try and strike down an entire statute. This was blatant judicial activism of the sort clownservatards claimed they abhorred. Except it is not true. Because when supposed "conservatives" think they can get away with it, they will curb kick all that talk about originalism and judicial restraint. Hypocrites.

2) This was a basic move of the sort the court often does when there is a case in the pipeline on the same matter awaiting a lower court ruling. That the author sought to use it as one of her examples shows she is really straining to build her list.

3) Now she is bitching about a Roberts' concurrence in a 9-0 court case? Sad and pathetic reaching yet again.

4) The decision here actually was a proper utilization of the Administrative Practices Act. Wilbur Ross' agency screwed up by giving a less than reasonable reason for the addition so it was an example of doing the right thing for the wrong stated reasons. For those who do not give a damn about procedure and only want their chosen end result, they will of course not care.

5) So one complaint she had is during the President Trump impeachment trial, the presiding chief justice refused to engage in right wing political bullshit preferring to focus on the real issue at hand? Yeah, that is such hackery whereas nothing Rand Paul was doing was grandstanding hackish bs? Bitch, please.

6) Gorsuch wrote the opinion and Roberts is being blamed for this one? Boy are we desperate now.

7) Ok, finally we get a legitimate gripe rather than political hackery. What one president puts in place with pure executive authority should be just as easily be removed by another president. So yeah, Roberts blew it on this one.

So of her seven examples, only one really holds water.

7-2: SCOTUS Rules “Peace Cross” Can Remain On Public Land

This was an unsurprising 7-2 ruling but nice to see nonetheless!

Roberts again sides with liberal Supreme Court justices in disagreeing with lower court interpretations

To summarize this situation in sequence courtesy of SCOTUS Blog:

• The Supreme Court had previously ruled 5-4 that the Texas state court needed to revisit the death sentence of an inmate who had been argued had intellectual disabilities which they claimed was not in line with the most recent medical guide on these matters.

• The Texas state court retried the case and again sentenced him to death even after the local district attorney agreed the man was intellectually disabled.

• The case returned to the Supreme Court where the justices were asked to take up the case once again. The claim made was that despite the court's prior rebuke of the Texas lower court that the state basically carbon copied their prior analysis and rubberstamped the same verdict. 

• The local district attorney refused to defend the court decision so the Texas AG office sought to do so.

• The Supreme Court reversed the state court with a second rebuke.

• The Court in reversing the Texas lower court argued that the state court basically ignored their prior rebuke and sent the case back for further proceedings consistent with the opinion rendered by SCOTUS.

• Though he had voted with the minority in 2017, Roberts recognized the scam the state court attempted to pull and wrote a separate opinion concurring with those who voted in the majority last time (sans Kennedy who is retired now) to throw out the death sentence in this case because though he had problems with the prior ruling, it was evident that the lower court here misapplied the prior court ruling from 2017. In short, he was recognizing what is flatly obvious in this case no matter what one thinks of the prior ruling.

• Alito along with Thomas and Gorsuch dissented from the ruling mainly to bitch that the 2017 ruling was not clear enough the first time and to uphold the death penalty sentence. In short, it was a sour grapes dissent from them for not winning on the first go around not an fair accounting of how the Texas lower court thumbed their nose at the Supreme Court's prior ruling in their retrying of the case. In short, Alito, Thomas, and Gorsuch were engaging in judicial activism here whereas Roberts (who agreed with their position in principle) was not.

• Kavanaugh did not join either ruling on this one. 

In short, Roberts was right on this where the particulars of this case go after what the Texas lower court did in response to the prior SCOTUS ruling and Alito, Thomas, and Gorsuch were wrong.

9-0: SCOTUS Rules That Eighth Amendment’s “Excessive Fines” Clause Applies To The State

I have written on civil asset forfeiture before{1} and it is a major issue with me. I am pleased to see the above unanimous decision of the Supreme Court which will serve as a good foundation for being able to go after civil asset forfeiture abuse at the state level.

Note:

{1} Here is one example from recent years:

Briefly on Civil Asset Forfeiture (circa June 3, 2017)

Briefly...

For those wondering about all the huffing and puffing about President Trump's AG appointee's Catholicism and why the Democrats are doing that right now, its a trial balloon for SCOTUS. In a nutshell:

Chief Justice Roberts is Catholic
Justice Thomas is Catholic
Justice Alito is Catholic
Justice Kavanaugh is Catholic
Justice Gorsuch is Episcopalian but was raised Catholic
Amy Coney Barrett the likely next court justice to be appointed by Trump is Catholic

This is why they are field testing that kind of argument now.

More on Conservative Judicial Activism:

This to a certain extent continues the thread topic located HERE.

Roberts invented a farcical excuse to rule the unconstitutional law constitutional -- changing his vote from one to strike down the unconstitutional law to one to preserve it 

Actually, that is not true. Roberts did not go along with the absurd notion of the minority that they could not sever the mandate and therefore had to strike the entire statute. (Talk about judicial activism!) He was willing to strike the Medicaid expansion and the mandate but when told it was all or nothing, he sided with the backup argument of the government that the mandate could be read as a tax -incidentally, something the Senate themselves made clear before they passed the statute to begin with.

I do not see SCOTUS going along with the "it is not severable" nonsense this time around any more than they did previously. However, they could very well rule the mandate is no longer constitutional since it cannot be read as a tax anymore and has already been ruled unconstitutional under the commerce clause. (And thus sever it from the statute which would make the statute an unworkable mess.) If I was to guess offhand, that is what I suspect they will do with two of the most ardent (and in this case, hypocritical!) "it cannot be severed" folks from 2012 no longer on the court.