SCOTUS Watch

[Smoove_B]

Susan Collins: "I could not vote for a judge who had demonstrated hostility to Roe v Wade because it would indicate a lack of respect for precedent. He views precedent ... as rooted in our Constitution."

Kavanaugh today voted to overturn 4 years of precedent on abortion rights.

[Zaxxon]

[Zaxxon]

Damn, I got Smooved.

[malchior]

Roberts knows that the legitimacy of the SCOTUS is on the line. Ironically, it just highlights how ideological the court is and is just him choosing how much damage the institution takes.

At least Roberts is in "save the institution mode" and not "get everything for the conservative movement while we can" mode. Also a good indication that he won't invalidate the entire ACA, though this could be another chance to knock another brick out of the edifice.

Meanwhile....still waiting for Mazars.

That they are leaving that one to last amps up the anxiety here.

[El Guapo]

Roberts knows that the legitimacy of the SCOTUS is on the line. Ironically, it just highlights how ideological the court is and is just him choosing how much damage the institution takes.

At least Roberts is in "save the institution mode" and not "get everything for the conservative movement while we can" mode. Also a good indication that he won't invalidate the entire ACA, though this could be another chance to knock another brick out of the edifice.

Meanwhile....still waiting for Mazars.

That they are leaving that one to last amps up the anxiety here.

Why is that? I was a little more anxious on Friday, as I was worried that they were going to drop a crazy pro-Trump decision on late Friday to try to minimize the controversial fallout.

Or were you referring to the ACA case and not Mazars?

[malchior]

Just cause its last. Nothing about the outcome particularly. I still expect a punt. Though it will be lame.

[El Guapo]

Still waiting on Mazars.

[Jaymann]

Should there be a vacancy between now and January, do the Democrats have enough votes to block the confirmation until "after the election" ala 2016. Or filibuster?

[El Guapo]

Should there be a vacancy between now and January, do the Democrats have enough votes to block the confirmation until "after the election" ala 2016. Or filibuster?

No, there's no filibuster on SCOTUS nominees now. If a vacancy arises between now and January, McConnell will sprint to confirm whomever Trump nominates as fast as possible.

[Jaymann]

So there is still hope for David Duke to make it onto the court?

[Blackhawk]

I'm crossing my fingers that every liberal Justice over the age of 60 decides to retire right after the election (assuming a Trump loss.)

[stessier]

I'm crossing my fingers that every liberal Justice over the age of 60 decides to retire right after the election (assuming a Trump loss.)

After the inauguration (assuming a Trump loss)!

[Blackhawk]

*Cough* Yeah, that's what I meant.

[El Guapo]

I'm crossing my fingers that every liberal Justice over the age of 60 decides to retire right after the election (assuming a Trump loss.)

After the inauguration (assuming a Trump loss)!

Well, also assuming that the Democrats take the Senate as well. If McConnell is still majority leader in 2021, you better believe he's going to refuse to confirm any Biden nominees until 2023.

Ginsburg may well retire anyway, because who knows how long she can physically hold on so probably worth taking a shot at confirming her replacement, but I don't think anyone else would retire unless there's a Democratic Senate majority.

[stessier]

Well, also assuming that the Democrats take the Senate as well. If McConnell is still majority leader in 2021, you better believe he's going to refuse to confirm any Biden nominees until 2023.

Why wait until 2023? He already (in this scenario) has a majority. If he's waiting that long, he's going to push it to the next election.

[El Guapo]

Well, also assuming that the Democrats take the Senate as well. If McConnell is still majority leader in 2021, you better believe he's going to refuse to confirm any Biden nominees until 2023.

Why wait until 2023? He already (in this scenario) has a majority. If he's waiting that long, he's going to push it to the next election.

Well, right - he'd wait until there's another Republican in the presidency, and he (or another Republican) is Senate Majority Leader. The only reason I said 2023 is because there'd be new Senate elections in 2022 (that could give Democrats the majority).

[Pyperkub]

I'm crossing my fingers that every liberal Justice over the age of 60 decides to retire right after the election (assuming a Trump loss.)

It won't make a difference. IMHO, the only fix will be packing the courts as FDR proposed by increasing the number of appellate district judges. The long term fallout to our Government structure as a result of McConnell's Party over Country approach is going to be interesting, in the Chinese curse sense of the word.

[malchior]

I'm crossing my fingers that every liberal Justice over the age of 60 decides to retire right after the election (assuming a Trump loss.)

It won't make a difference. IMHO, the only fix will be packing the courts as FDR proposed by increasing the number of appellate district judges. The long term fallout to our Government structure as a result of McConnell's Party over Country approach is going to be interesting, in the Chinese curse sense of the word.

Unfortunately that is considered a 'radical' plan and doesn't have Biden's support. Biden still says out loud at least that he will work the Republicans when he comes to power. It isn't hard to handicap the chance of success there. The analysis above I think is right, unless the Senate flips we will see no movement on this. Or Biden will need to capitulate in ways that'll undermine voter confidence. There is almost no plausible positive scenario ahead here with regards to the judiciary.

[Pyperkub]

I'm crossing my fingers that every liberal Justice over the age of 60 decides to retire right after the election (assuming a Trump loss.)

It won't make a difference. IMHO, the only fix will be packing the courts as FDR proposed by increasing the number of appellate district judges. The long term fallout to our Government structure as a result of McConnell's Party over Country approach is going to be interesting, in the Chinese curse sense of the word.

Unfortunately that is considered a 'radical' plan and doesn't have Biden's support. Biden still says out loud at least that he will work the Republicans when he comes to power. It isn't hard to handicap the chance of success there. The analysis above I think is right, unless the Senate flips we will see no movement on this. Or Biden will need to capitulate in ways that'll undermine voter confidence. There is almost no plausible positive scenario ahead here with regards to the judiciary.

That depends. If the Senate flips and a bill is delivered, the question isn't whether Biden supports it, the question is would he sign it?

[pr0ner]

On Monday, SCOTUS denied cert in this Colorado case where a SWAT team blew up an family's home while chasing a suspected shoplifter. The home was valued at $580,000; Greenwood Village paid the Lech family $5000. The Lech's sued using the Takings Clause of the 5th Amendment, but the 10th Circuit disagreed because the police acted within their "police power" by destroying the home in order to get the shoplifter to surrender.

[Isgrimnur]

AP

The Supreme Court elated religious freedom advocates and alarmed secular groups with its Tuesday ruling on public funding for religious education, a decision whose long-term effect on the separation of church and state remains to be seen.

In Espinoza v. Montana Department of Revenue, the high court ruled 5-4 that states must give religious schools the same access to public funding that other private schools receive, preserving a Montana scholarship program that had largely benefited students at religious institutions.
...
Tuesday’s ruling focused on a program that offered indirect tuition assistance through tax credits rather than direct state aid to religious schools. The court left unresolved the extent to which religious schools may use public funding for explicitly religious activities, such as worship services and religious-education courses. Mach said that issue likely would be the focus of future litigation, given that many religious schools consider doctrinal education to be at the core of their mission.
...
Others tracking the Montana case stopped short of predicting a major expansion of state funding for religious education.

Douglas Laycock, a law professor at the University of Virginia who co-authored a brief supporting the plaintiffs on behalf of multiple religious groups, described the decision as “incremental” and “building cautiously” on a 2017 case that ruled a Missouri church could use a state grant to resurface its playground.

“But incremental moves have been accumulating since 1986, and what would pretty clearly have been unconstitutional in the ’70s and early ’80s is now, sometimes, constitutionally required,” Laycock wrote in an email.

[Defiant]

There are rumors that Alito may retire.

https://www.washingtonexaminer.com/news ... reme-court

[Pyperkub]

There are rumors that Alito may retire.

https://www.washingtonexaminer.com/news ... reme-court

Hewitt may not be the most reliable source, especially as the GOP is desperately trying to find ways of changing the narrative of the election, the Supreme Court being one avenue being actively explored.

This could easily just be a trial balloon to see how that plays.

[ImLawBoy]

It wouldn't be surprising if Alito would retire while the Rs still control the replacement process to ensure a younger conservative judge on the court for a long time.

[El Guapo]

Yeah, it depends. The calculation for any / all of the conservative justices is that if they don't retire now, they may well not be able to retire for 4 - 8 years (maybe even 12) without their replacement being an ideological opposite. So Alito has to ask himself if he's prepared to spend the next decade of his life on the court or nto.

[Pyperkub]

Yeah, it depends. The calculation for any / all of the conservative justices is that if they don't retire now, they may well not be able to retire for 4 - 8 years (maybe even 12) without their replacement being an ideological opposite. So Alito has to ask himself if he's prepared to spend the next decade of his life on the court or nto.

Merrick Garland wasn't "an ideological opposite". This is a fallacy.

[El Guapo]

Yeah, it depends. The calculation for any / all of the conservative justices is that if they don't retire now, they may well not be able to retire for 4 - 8 years (maybe even 12) without their replacement being an ideological opposite. So Alito has to ask himself if he's prepared to spend the next decade of his life on the court or nto.

Merrick Garland wasn't "an ideological opposite". This is a fallacy.

I mean....Garland definitely wasn't an Alito style conservative. One can quibble with "opposite" I suppose, but the bottom line is that you'd wind up with judicial conservatives getting replaced by judicial liberals of one type or another (and importantly, Alito wouldn't have any significant say in who that replacement is).

[Pyperkub]

Yeah, it depends. The calculation for any / all of the conservative justices is that if they don't retire now, they may well not be able to retire for 4 - 8 years (maybe even 12) without their replacement being an ideological opposite. So Alito has to ask himself if he's prepared to spend the next decade of his life on the court or nto.

Merrick Garland wasn't "an ideological opposite". This is a fallacy.

I mean....Garland definitely wasn't an Alito style conservative. One can quibble with "opposite" I suppose, but the bottom line is that you'd wind up with judicial conservatives getting replaced by judicial liberals of one type or another (and importantly, Alito wouldn't have any significant say in who that replacement is).

Honestly, he shouldn't. Contrary to our current Oligarchy, a Supreme Court seat shouldn't be passed down like an inheritance . Bush family and the Presidency, notwithstanding .

Trump is fine with that (it dovetails quite nicely with his corrupt style), but he really doesn't know much at all.

[El Guapo]

Yeah, it depends. The calculation for any / all of the conservative justices is that if they don't retire now, they may well not be able to retire for 4 - 8 years (maybe even 12) without their replacement being an ideological opposite. So Alito has to ask himself if he's prepared to spend the next decade of his life on the court or nto.

Merrick Garland wasn't "an ideological opposite". This is a fallacy.

I mean....Garland definitely wasn't an Alito style conservative. One can quibble with "opposite" I suppose, but the bottom line is that you'd wind up with judicial conservatives getting replaced by judicial liberals of one type or another (and importantly, Alito wouldn't have any significant say in who that replacement is).

Honestly, he shouldn't. Contrary to our current Oligarchy, a Supreme Court seat shouldn't be passed down like an inheritance . Bush family and the Presidency, notwithstanding .

Trump is fine with that (it dovetails quite nicely with his corrupt style), but he really doesn't know much at all.

He shouldn't, but he will with the Trump administration. He wouldn't (or at least would have much less influence) with a Biden administration.

[Pyperkub]

Session apparently extended until next week. Timing Mazars? Congressional break the week after next...

[malchior]

Yeah, it depends. The calculation for any / all of the conservative justices is that if they don't retire now, they may well not be able to retire for 4 - 8 years (maybe even 12) without their replacement being an ideological opposite. So Alito has to ask himself if he's prepared to spend the next decade of his life on the court or nto.

Merrick Garland wasn't "an ideological opposite". This is a fallacy.

I mean....Garland definitely wasn't an Alito style conservative. One can quibble with "opposite" I suppose, but the bottom line is that you'd wind up with judicial conservatives getting replaced by judicial liberals of one type or another (and importantly, Alito wouldn't have any significant say in who that replacement is).

Honestly, he shouldn't. Contrary to our current Oligarchy, a Supreme Court seat shouldn't be passed down like an inheritance . Bush family and the Presidency, notwithstanding .

Trump is fine with that (it dovetails quite nicely with his corrupt style), but he really doesn't know much at all.

He shouldn't, but he will with the Trump administration. He wouldn't (or at least would have much less influence) with a Biden administration.

Yeah and it isn't like the political class does anything but put up the barest pretense that the judiciary is non-political anymore. If you are a Conservative judge who wants to maintain the GOP firewall and want to retire, then you have to calculate against the high odds that Trump is going to lose. They know the score. It isn't like Supreme Court justices are above the fray anymore. For instance, the events around the Kennedy retirement and Kavanaugh's nomination look pretty shady when you dig in.

[Holman]

Yeah, it depends. The calculation for any / all of the conservative justices is that if they don't retire now, they may well not be able to retire for 4 - 8 years (maybe even 12) without their replacement being an ideological opposite. So Alito has to ask himself if he's prepared to spend the next decade of his life on the court or nto.

Merrick Garland wasn't "an ideological opposite". This is a fallacy.

I mean....Garland definitely wasn't an Alito style conservative. One can quibble with "opposite" I suppose, but the bottom line is that you'd wind up with judicial conservatives getting replaced by judicial liberals of one type or another (and importantly, Alito wouldn't have any significant say in who that replacement is).

Honestly, he shouldn't. Contrary to our current Oligarchy, a Supreme Court seat shouldn't be passed down like an inheritance . Bush family and the Presidency, notwithstanding .

Trump is fine with that (it dovetails quite nicely with his corrupt style), but he really doesn't know much at all.

He shouldn't, but he will with the Trump administration. He wouldn't (or at least would have much less influence) with a Biden administration.

Yeah and it isn't like the political class does anything but put up the barest pretense that the judiciary is non-political anymore. If you are a Conservative judge who wants to maintain the GOP firewall and want to retire, then you have to calculate against the high odds that Trump is going to lose. They know the score. It isn't like Supreme Court justices are above the fray anymore. For instance, the events around the Kennedy retirement and Kavanaugh's nomination look pretty shady when you dig in.

I won't be surprised at all to see Clarence Thomas retire in August and be replaced by some Federalist-approved 30-something secret neo-Nazi.

[Pyperkub]

Yeah, it depends. The calculation for any / all of the conservative justices is that if they don't retire now, they may well not be able to retire for 4 - 8 years (maybe even 12) without their replacement being an ideological opposite. So Alito has to ask himself if he's prepared to spend the next decade of his life on the court or nto.

Merrick Garland wasn't "an ideological opposite". This is a fallacy.

I mean....Garland definitely wasn't an Alito style conservative. One can quibble with "opposite" I suppose, but the bottom line is that you'd wind up with judicial conservatives getting replaced by judicial liberals of one type or another (and importantly, Alito wouldn't have any significant say in who that replacement is).

Honestly, he shouldn't. Contrary to our current Oligarchy, a Supreme Court seat shouldn't be passed down like an inheritance . Bush family and the Presidency, notwithstanding .

Trump is fine with that (it dovetails quite nicely with his corrupt style), but he really doesn't know much at all.

He shouldn't, but he will with the Trump administration. He wouldn't (or at least would have much less influence) with a Biden administration.

Yeah and it isn't like the political class does anything but put up the barest pretense that the judiciary is non-political anymore. If you are a Conservative judge who wants to maintain the GOP firewall and want to retire, then you have to calculate against the high odds that Trump is going to lose. They know the score. It isn't like Supreme Court justices are above the fray anymore. For instance, the events around the Kennedy retirement and Kavanaugh's nomination look pretty shady when you dig in.

I won't be surprised at all to see Clarence Thomas retire in August and be replaced by some Federalist-approved 30-something secret neo-Nazi.

I doubt that one. The book deal would suck.

[Blackhawk]

I won't be surprised at all to see Clarence Thomas retire in August and be replaced by some Federalist-approved 30-something secret neo-Nazi.

Secret? Do they even bother with that now?

[malchior]

I won't be surprised at all to see Clarence Thomas retire in August and be replaced by some Federalist-approved 30-something secret neo-Nazi.

There were rumors he was going to retire last year that he shot down harshly. I could see him definitely leave this year in particular. His wife is all tied up in Trumpism to boot. It might be time to head for the 'country'.

[El Guapo]

Still no Mazars opinion yet. BUT in the faithless elector case the court ruled that states can enforce laws requiring electors to vote how they are required to under state law. I haven't fully thought through the implications of this case, but this seems good (even though it also highlights the extent to which the electoral college is a stupid mockery of what it was supposed to be).

[malchior]

I skimmed it because this one wasn't a surprise to me at all. The Constitution cedes this power to the States. What's interesting is it seems that you can still be a faithless elector...you just risk penalty. But yeah I agree it just highlights how far away we've gotten from the point of it. It also legitimizes that popular vote compact fwiw.

[El Guapo]

I skimmed it because this one wasn't a surprise to me at all. The Constitution cedes this power to the States. What's interesting is it seems that you can still be a faithless elector...you just risk penalty. But yeah I agree it just highlights how far away we've gotten from the point of it. It also legitimizes that popular vote compact fwiw.

I don't know the cases or the law super well, but I assume that there has to be a reasonable originalist type argument against these types of state laws, given that the original vision of the electoral college was that the electors would meet and cast votes based upon their own best judgment. But the 'discretion of the states' plus 'throwing democracy into chaos' are super compelling counter arguments.

Also, these decisions do allow states to make sure that the votes are cast the 'right way', in addition to allowing them to punish faithless electors. The Colorado law at issue in one of the cases allows the CO secretary of state to replace faithless electors with ones who will vote the way that they're supposed to. That's what happened to Baca which prompted his lawsuit - he voted for Kasich, then the CO secretary of state replaced him and the new elector voted for Clinton. The 10th Circuit invalidated the CO law which allowed the SoS to do that, and the 10th circuit was reversed by SCOTUS today.

[El Guapo]

When is the Supreme Court releasing decisions next? I don't see any opinion issuance dates on the calendar (after yesterday).

[stessier]

When is the Supreme Court releasing decisions next? I don't see any opinion issuance dates on the calendar (after yesterday).

I can't find anything either on when the next release date is.