SCOTUS Watch

[Zarathud]

Perhaps Justice Thomas will be possessed by the spirit of Justice Scalia and speak in tongues.

Or find himself haunted by Justice of SCOTUS Past (aka Founders Intent) like Scrooge.

Tiny Tim: And equal rights for every one!!

[Rip]

https://www.youtube.com/watch?v=GeWWFm7NVqk

Wise man......

[Zarathud]

Nice try, Rip, but you fail to grasp the reality of numbers.

Didn't you notice the date stamp on that Biden video? The one at the end of June, not February? Biden was speaking about the perils of naming a nominee "at the end of the summer" (July/August) given the upcoming November election.

President Reagan nominated Justice Kennedy in November 1987 and his nomination hearings were from December 14-16, 1987. The nomination was approved on February 3, 1988 after only 65 days by a Democratic controlled Senate. The longest was 125 days when President Wilson nominated the famous but controversial Justice Brandeis, prompting the Senate to hold its first public hearing on his Supreme Court nomination. Even if that record is matched by Republican obstruction, Obama's nominee will be heard well before the July 18-21 Republican National Convention.

[stessier]

Nice try, Rip, but you fail to grasp the reality of numbers.

Didn't you notice the date stamp on that Biden video? The one at the end of June, not February? Biden was speaking about the perils of naming a nominee "at the end of the summer" (July/August) given the upcoming November election.

President Reagan nominated Justice Kennedy in November 1987 and his nomination hearings were from December 14-16, 1987. The nomination was approved on February 3, 1988 after only 65 days by a Democratic controlled Senate. The longest was 125 days when President Wilson nominated the famous but controversial Justice Brandeis, prompting the Senate to hold its first public hearing on his Supreme Court nomination. Even if that record is matched by Republican obstruction, Obama's nominee will be heard well before the July 18-21 Republican National Convention.

That's not the longest. There was one that took a year according to 538...I can't find it at the moment though.

[Defiant]

Nice try, Rip, but you fail to grasp the reality of numbers.

Didn't you notice the date stamp on that Biden video? The one at the end of June, not February? Biden was speaking about the perils of naming a nominee "at the end of the summer" (July/August) given the upcoming November election.

President Reagan nominated Justice Kennedy in November 1987 and his nomination hearings were from December 14-16, 1987. The nomination was approved on February 3, 1988 after only 65 days by a Democratic controlled Senate. The longest was 125 days when President Wilson nominated the famous but controversial Justice Brandeis, prompting the Senate to hold its first public hearing on his Supreme Court nomination. Even if that record is matched by Republican obstruction, Obama's nominee will be heard well before the July 18-21 Republican National Convention.

That's not the longest. There was one that took a year according to 538...I can't find it at the moment though.

IIRC, that was to hear several different nominees, though.

[Rip]

On the eve of arguments in the biggest abortion case to reach the supreme court in decades, a lower court has crystalized the stakes with a decision that could permanently shut down all but one abortion clinic in Louisiana unless the high court rules otherwise.

The decision, by the fifth circuit US court of appeals, allows a Louisiana law to take effect that requires doctors who provide abortions to have admitting privileges at hospitals within 30 miles. In doing so, the court blocked a federal judge’s earlier ruling that found the admitting privileges unconstitutional.


Quarter of US abortion clinics have closed over last five years, report says
Read more
Overnight, the ruling plunged Louisiana’s four abortion clinics into chaos. All clinics reported being swamped by phone calls. Two clinics, in Bossier City and Baton Rouge, put all procedures on hold and referred patients to facilities in Shreveport and New Orleans.

The Baton Rouge clinic is a 90-minute drive from the next closest abortion provider. The Bossier City clinic was refusing to schedule future procedures. “We’re watching a nightmare unfold,” said Rochelle Tafolla, a spokeswoman for Planned Parenthood of the Gulf Coast.

US district judge John deGravelles in Baton Rouge last month barred Louisiana officials from enforcing the mandate. DeGravelles has not yet ruled on the state’s abortion law itself, though he heard arguments about it in June.

Have done work for his firm, he is a friend although not close.

http://www.theguardian.com/us-news/2016 ... on-clinics

[AWS260]

Justice Thomas piped up today.

[Defiant]

(I think I'm speechless now that he isn't)

[Isgrimnur]

ERR_CONNECTION_REFUSED

[Defiant]

It was so shocking it caused a short circuit! Lights go out at Supreme Court

I guess Scalia was the one that usually paid the electric bill?

[Jaymann]

Justice Thomas piped up today.

Maybe he lurks on OO...

[Defiant]

The Supreme Court on Friday blocked enforcement of a Louisiana law that could force all but one of the state's abortion clinics to close, a sign that a similar law in Texas also could be in peril.

The justices effectively reversed an order by the federal appeals court in New Orleans that allowed Louisiana to begin enforcing its 2014 clinic regulation law even as it is being challenged in the courts.

The high court's order, with only Justice Clarence Thomas noting his dissent, came two days after the justices heard arguments in a major abortion case from Texas and just hours after they voted in a private meeting on the outcome of that case.

A vote for the clinics in Louisiana could signal that Justice Anthony Kennedy, whose vote is crucial to both sides, also will be a decisive fifth vote in favor of abortion clinics in Texas.

The cases are at different stages in the legal process, but they involve similar laws and actions by the same federal appeals court, the 5th U.S. Circuit Court of Appeals in New Orleans.

link

[Defiant]

The Supreme Court on Monday unanimously reversed an Alabama court's refusal to recognize a same-sex adoption.

[Isgrimnur]

Unions

Tuesday’s terse 4-4 affirmance in Friedrichs v. California Teachers Association brings at least a temporary cease-fire in an unsavory legal war.
...
Friedrichs was a challenge to the practice, permitted under the laws of about half the states, of permitting public-employee unions to charge non-members “fair share” or “agency” fees. Under this system, the majority of workers in a “bargaining unit” may vote to designate a union as their “exclusive bargaining representative.” Under the law, that union may then collect union dues from all workers who choose to become members. But no worker can be compelled to join, and regardless of whether a member joins or not, the union must represent all members. That means the objecting worker shares equally in higher pay, better health benefits, superior job protection, streamlined bargaining procedures, or other gains the union wins during bargaining with the state.
...
In a 1977 case called Abood v. Detroit Board of Education, the Court gave its approval to the “free rider” argument. Objecting teachers in Abood had argued that all public-employee union activity was “political” in nature; thus, even subsidizing bargaining violated the First Amendment. The Court majority rejected that argument: “The differences between public- and private-sector collective bargaining simply do not translate into differences in First Amendment rights,” it said.

The Abood principle was reaffirmed, or at least applied, six times in the next two decades, most recently in 2009. Under ordinary circumstances, the Court is expected to stick with a precedent like this unless there’s something unusual about it—for example, that it has become unworkable, or conflicts with other rulings. The fact that some judges didn’t agree with it when it was first decided, without more, is not supposed to be enough. ... But Alito at some point after that seems to have decided that Abood must go. In his opinion in a 2012 case called Knox v. Service Employees International Union, he tackled an issue the case did not present: “[C]ompulsory fees constitute a form of compelled speech and association that imposes a ‘significant impingement on First Amendment rights,’” he wrote. “Our cases to date have tolerated this ‘impingement,’ and we do not revisit today whether the Court’s former cases have given adequate recognition to the critical First Amendment rights at stake.”

That is justice-speak for “Bring me a case.” By 2014, a candidate had appeared: Harris v. Quinn, a challenge to a “fair share” arrangement for home-health workers in Illinois who were paid by the state using Medicaid funds. Abood seemed doomed. But in the end, the Court couldn’t muster five votes to overturn Abood altogether; instead, the conservative majority held that the home-health workers weren’t “full-fledged” state workers at all. The union lost because Abood didn’t apply.
...
The anti-union Center for Individual Rights rushed into court in California on behalf of ten public-school teachers (precisely the same kind of workers as in Abood) who object to the fees.

The plaintiffs declined to put on any evidence (that might, for example, have shown that the union’s activities actually are all political). When the trial court ruled against them (Supreme Court precedent, doncha know), they asked the Ninth Circuit to affirm that opinion as soon as possible.

Please rule against us as soon as possible, they seemed to be suggesting. No one cares what you think because when we get to the Show we have the votes. Or, that is, we have the votes now. If we wait, there may be a personnel change. Let’s get this done.

The Supreme Court heard Friedrichs on January 11. The lack of a factual record allowed Carvin to argue that every action a union takes is a matter of public-policy advocacy—even fire drills. “They do safety training,” conservative lawyer Michael Carvin said with a straight face. “Can you think of something that’s more a matter of public concern, that’s more of an ideological point, that’s more important? ... They’re basic to our democracy.”

After oral argument, the stage seemed set for a 5-4 decision that would at least hobble, if not destroy, public-sector unions in many states.

But fate intervened. Without Scalia’s vote, the challenge failed and the lower court’s ruling (calling the challenge “insubstantial”) is affirmed in a one-sentence order. That opinion has no precedential force. But precedent seems not to matter to conservatives in this area. Nor, for that matter, does simple shame, or even a desire to appear non-partisan. If a conservative majority re-emerges in the years ahead, expect the issue to reappear.

[Jaymann]

Unions are an area where I am not in lockstep with the liberal mindset. I have personally witnessed union workers whose pay is through the roof, and think they can disregard direction from management and get away with shitty work because they are untouchable. We are now going towards contracting out more work in order to avoid those assholes.

[Isgrimnur]

Unions are like any other organization. Too much power breeds corruption, be it government, companies, or unions. It's almost like it's people that are the problem.

[noxiousdog]

Unions are like any other organization. Too much power breeds corruption, be it government, companies, or unions. It's almost like it's people that are the problem.

So doesn't it seem that the unions should have to earn their contituents money rather than demand it through law?

[Isgrimnur]

After I laid out a gray area, you expect me to answer a black vs. white question?

I'm governed by politicians that don't represent my interests, yet my money goes to support them. Where do I get to opt out of paying taxes to support politicians of the opposing party?

[Jaymann]

After I laid out a gray area, you expect me to answer a black vs. white question?

I'm governed by politicians that don't represent my interests, yet my money goes to support them. Where do I get to opt out of paying taxes to support politicians of the opposing party?

Some of the most popular countries that offer the financial benefit of having no income tax are Bermuda, Monaco, the Bahamas, Andorra and the United Arab Emirates (UAE).

[Isgrimnur]

My state has no income tax. They make up for it in sales tax.

[El Guapo]

Of course, the question for the courts is not whether we should as a policy matter permit unions to do this, but whether it is unconstitutional for the government to allow them (specifically, public sector unions) to do this, due to the first amendment.

[noxiousdog]

Of course, the question for the courts is not whether we should as a policy matter permit unions to do this, but whether it is unconstitutional for the government to allow them (specifically, public sector unions) to do this, due to the first amendment.

Ah, that makes more sense, and is more clear. Thanks.

[noxiousdog]

After I laid out a gray area, you expect me to answer a black vs. white question?

I'm governed by politicians that don't represent my interests, yet my money goes to support them. Where do I get to opt out of paying taxes to support politicians of the opposing party?

The specific article you quoted didn't have any gray at all which is what confused me.

And in your analogy, I think it's more like before forced to pay taxes to a specific party rather than government as a whole.

edit: but I agree with the point El Guapo was making. I disagree with the law, but I don't think it's unconstitutional.

[El Guapo]

After I laid out a gray area, you expect me to answer a black vs. white question?

I'm governed by politicians that don't represent my interests, yet my money goes to support them. Where do I get to opt out of paying taxes to support politicians of the opposing party?

The specific article you quoted didn't have any gray at all which is what confused me.

And in your analogy, I think it's more like before forced to pay taxes to a specific party rather than government as a whole.

edit: but I agree with the point El Guapo was making. I disagree with the law, but I don't think it's unconstitutional.

Also FWIW from the link it appears that the plaintiffs were making a very broad first amendment argument - that all such mandatory fees to non-members for public unions are automatically unconstitutional under the first amendment. They could have (but chose not to) make the narrower argument that their fees were in fact going to pay for political (lobbying) activity.

[Pyperkub]

Unions are like any other organization. Too much power breeds corruption, be it government, companies, or unions. It's almost like it's people that are the problem.

So doesn't it seem that the unions should have to earn their contituents money rather than demand it through law?

Actually, this just affirms (re-affirms) the fair share principle in Abood, which estabilished that fair share dues are appropriate in the case of Collective Bargaining which also helps non-union members. the money was earned through the collective bargaining process in which the Union gained benefits for non-full share paying members.

[noxiousdog]

Unions are like any other organization. Too much power breeds corruption, be it government, companies, or unions. It's almost like it's people that are the problem.

So doesn't it seem that the unions should have to earn their contituents money rather than demand it through law?

Actually, this just affirms (re-affirms) the fair share principle in Abood, which estabilished that fair share dues are appropriate in the case of Collective Bargaining which also helps non-union members. the money was earned through the collective bargaining process in which the Union gained benefits for non-full share paying members.

That's what it does, but that doesn't mean we have to agree with the law that puts it in practice.

[El Guapo]

Unions are an area where I am not in lockstep with the liberal mindset. I have personally witnessed union workers whose pay is through the roof, and think they can disregard direction from management and get away with shitty work because they are untouchable. We are now going towards contracting out more work in order to avoid those assholes.

That makes sense, although it's only half the equation when it comes to unions. After all, the mirror image is also true, that there are companies / managers that badly screw over non-union workers in ways that would be more difficult if they were unionized.

One of the key questions is whether you believe one danger is more prevalent than the other.

[Isgrimnur]

That's very much a measurement that changes over time.

[Jaymann]

Unions are an area where I am not in lockstep with the liberal mindset. I have personally witnessed union workers whose pay is through the roof, and think they can disregard direction from management and get away with shitty work because they are untouchable. We are now going towards contracting out more work in order to avoid those assholes.

That makes sense, although it's only half the equation when it comes to unions. After all, the mirror image is also true, that there are companies / managers that badly screw over non-union workers in ways that would be more difficult if they were unionized.

One of the key questions is whether you believe one danger is more prevalent than the other.

That is exactly why I am conflicted on the issue, e.g. Walmart.

[Isgrimnur]

Religious employers and healthcare:

The court asked for additional information from both sides on “whether and how” employees of religious nonprofits could get contraceptive coverage through other means that would be less objectionable to their employers.

That request indicates that the court is looking for a new accommodation that would still allow employees to get contraceptive coverage, replacing the system that religious nonprofits are currently challenging.
The order from the court provides an example of a system where employers informed their insurance company of their objection to contraceptive coverage at the time the employer singed up for insurance in the first place, eliminating the need for a separate form.

The court also asked for “other proposals along similar lines."
The goal, it said, is to address how employees could still get contraceptive coverage “but in a way that does not require any involvement” from the religious employers, meaning they would not have to sign the form that they currently object to.

The Supreme Court appeared to be headed towards a possible 4-4 split on the case at arguments last week, and the order could be seen as a way to avoid that outcome.
...
At issue is the requirement under the Affordable Care Act that health insurance plans cover contraception at no cost to the patient. The Obama administration has devised an accommodation to that requirement for religious nonprofits such as colleges and hospitals.

Under the accommodation, nonprofits that object to covering contraceptives can sign a two-page form notifying their insurer. The insurer will then separately pay for the contraceptives for employees, which the administration says strikes a good balance: The employer does not have to provide the coverage, but the employees can still get contraceptives.
But a group of religious nonprofits disagree.

They say they are still complicit in their employees getting contraceptive coverage and call that a violation of a 1993 law that says the government cannot “substantially burden” someone’s exercise of religion unless it is the “least restrictive means” of furthering a “compelling government interest.”

[Pyperkub]

Unions are like any other organization. Too much power breeds corruption, be it government, companies, or unions. It's almost like it's people that are the problem.

So doesn't it seem that the unions should have to earn their contituents money rather than demand it through law?

Actually, this just affirms (re-affirms) the fair share principle in Abood, which estabilished that fair share dues are appropriate in the case of Collective Bargaining which also helps non-union members. the money was earned through the collective bargaining process in which the Union gained benefits for non-full share paying members.

That's what it does, but that doesn't mean we have to agree with the law that puts it in practice.

Well they *are* hiring and paying for lawyers, negotiators and lobbyists to gain these benefits for the fair-share paying non-members who knew this was the case when they took the job. One may not always feel that a lawyer has earned their money, but they still have to pay generally.

You may not agree with it, but Stare Decisis is pretty clear here, and this case was more a way to try to overturn existing, settled law for political gain. The real way to change this is through the legislative process, not trying to legislate from the bench.

[geezer]

My state has no income tax. They make up for it in sales tax.

And property tax.

[noxiousdog]

Unions are like any other organization. Too much power breeds corruption, be it government, companies, or unions. It's almost like it's people that are the problem.

So doesn't it seem that the unions should have to earn their contituents money rather than demand it through law?

Actually, this just affirms (re-affirms) the fair share principle in Abood, which estabilished that fair share dues are appropriate in the case of Collective Bargaining which also helps non-union members. the money was earned through the collective bargaining process in which the Union gained benefits for non-full share paying members.

That's what it does, but that doesn't mean we have to agree with the law that puts it in practice.

Well they *are* hiring and paying for lawyers, negotiators and lobbyists to gain these benefits for the fair-share paying non-members who knew this was the case when they took the job. One may not always feel that a lawyer has earned their money, but they still have to pay generally.

You may not agree with it, but Stare Decisis is pretty clear here, and this case was more a way to try to overturn existing, settled law for political gain. The real way to change this is through the legislative process, not trying to legislate from the bench.

Right. I agreed with that after El Guapo explained.

[Isgrimnur]

Freeze!

The Supreme Court on Wednesday said it was unconstitutional for the government to seize the “untainted” assets of a criminal suspect when it keeps her from hiring a lawyer of her choice to fight the charges.

A splintered court said the Sixth Amendment right to hire a qualified attorney that a defendant can afford prevailed against the government’s interest in freezing assets that could be used for restitution and fines if the person is convicted.
...
The case divided the court in unusual ways. Breyer’s opinion was joined by Chief Justice John G. Roberts Jr. and two justices from the left, Ruth Bader Ginsburg and Sonia Sotomayor. Conservative Justice Clarence Thomas agreed with the outcome but not Breyer’s reasoning.

Justice Anthony M. Kennedy wrote a dissent that was joined by conservative Justice Samuel A. Alito Jr., while liberal Justice Elena Kagan wrote a separate dissenting opinion.

The case was brought by Sila Luis of Miami, who was indicted in 2012 for paying kickbacks, conspiring to commit fraud and other crimes related to the government’s spending on health care. All told, prosecutors said, Luis’s actions brought her about $45 million from Medicare over a six-year period.

The problem for the government was that she spent almost all of it, according to court documents. She transferred some to other family members, placed some in holdings in Mexico, and bought herself various luxuries and trips abroad.

But the government went after about $2 million remaining in Luis’s possession, even though it could not show that money was related to her alleged crimes. A district judge approved freezing the assets, and an appeals court upheld the order.
...
“The relevant difference consists of the fact that the property here is untainted; i.e., it belongs to the defendant, pure and simple,” Breyer wrote. “In this respect it differs from a robber’s loot, a drug seller’s cocaine, a burglar’s tools, or other property associated with the planning, implementing, or concealing of a crime.”

Breyer acknowledged that money is fungible but said “the law has tracing rules that help courts implement the kind of distinction we require in this case.”

[El Guapo]

FWIW this is a plurality SCOTUS opinion - Breyer's opinion got 4 votes, and the fifth decisive vote in favor of the defendant (from Thomas) was agreeing with Breyer on the outcome but not on the rationale. Which means that the outcome is binding on lower courts but not the rationale.

In other words, the government can't do what it did here but it's not crystal clear why.

[stessier]

That's kind of fun to think about.

[Defiant]

That's a weird split.

[Fireball]

My state has no income tax. They make up for it in sales tax.

Yup. Texas is big on regressive, soak-the-poor taxation.

[Isgrimnur]

Districting

In a unanimous result, the court said a state can draw legislative districts based on total population. At issue in the case was the "one person, one vote" principle dating back to the 1960s, when the court held that state legislative districts must be drawn so they are equal in population.

But, until Monday, justices never specified whether that doctrine applied to the general population or to the voting population. All states currently draw lines based on general population, but two conservative plaintiffs from Texas argued their vote was being diluted in relation to other districts that had the same number of people but fewer voters.

The Obama administration and state of Texas opposed the lawsuit. Civil rights groups watched the case carefully, fearful that if the court were to rule with the plaintiffs, it could potentially shift power from urban areas -- districts that tend to include a higher percentage of individuals not eligible to vote such as non-citizens, released felons and children -- to rural areas that are more likely to favor Republicans.

Justice Ruth Bader Ginsburg wrote the opinion.
...
Edward Blum, the director of a conservative group called Project on Fair Representation, backed the challenge by Texas residents Sue Evenwel and Edward Pfenninger. Blum's group was also behind a 2013 case that invalidated a central provision of the Voting Rights Act as well as a case this term seeking to strike down a race-conscious admissions program at the University of Texas.
...
The plaintiffs argued that their vote was being diluted in relation to voters in other districts and that Texas must look primarily at the total number of eligible voters when it draws district lines.
...
Also supporting Texas was Nathaniel Persily of Stanford Law School, who said that if the court were to say that the Constitution requires states to use the voting population, it could unleash a series of questions regarding the reliability of voter lists and surveys. "A national database of eligible voters does not exist and will not exist in the foreseeable future," he said in an amicus brief.

Politics make strange bedfellows.

[noxiousdog]

My state has no income tax. They make up for it in sales tax.

Yup. Texas is big on regressive, soak-the-poor taxation.

?

hmm