Octopus Overlords

Ijeet Pai.

@jentaub has a really good live-tweet of the proceedings going, for those who want to follow along. She's trying to dumb it down for us non-lawtalking types, but lots of it is still going over my head.

Listening live. This tweet is a good indicator that Kagan thought that this going this far was not normal.

Circling back - most of the judges sounded very skeptical about Trump's case. That's good news. Let's see how the decision goes before we count chickens but we might have a stay of Hungary-ship.

malchior wrote: Tue May 12, 2020 4:14 pm Circling back - most of the judges sounded very skeptical about Trump's case. That's good news. Let's see how the decision goes before we count chickens but we might have a stay of Hungary-ship.

That's good. It's hard to overstate how bonkers it would be legally to side with Trump on this.

I do worry whether the majority might just find some procedural issue to latch onto to justify booting it down to the lower courts, such that they don't block subpoenas but where they delay the results past November.

I wouldn't at all be surprised for the court to decide it's a political issue that they can't weigh in on - that's a classic SCOTUS maneuver to avoid refereeing disputes between the legislative and executive branch. That would essentially let the existing rulings stand, but whether the banks would still comply to turn things over is a separate issue. The banks have said they'd comply with a SCOTUS ruling, so I'd hope they'd then see this as their opportunity to release the records knowing that the highest ruling they've received said they should.

El Guapo wrote: Tue May 12, 2020 4:21 pmI do worry whether the majority might just find some procedural issue to latch onto to justify booting it down to the lower courts, such that they don't block subpoenas but where they delay the results past November.

That seems to be Kavanaugh's angle today, right? Arguing procedural elements? No idea who took care of his credit card debt, but it looks like it really paid off.

ImLawBoy wrote: Tue May 12, 2020 4:27 pm I wouldn't at all be surprised for the court to decide it's a political issue that they can't weigh in on - that's a classic SCOTUS maneuver to avoid refereeing disputes between the legislative and executive branch. That would essentially let the existing rulings stand, but whether the banks would still comply to turn things over is a separate issue. The banks have said they'd comply with a SCOTUS ruling, so I'd hope they'd then see this as their opportunity to release the records knowing that the highest ruling they've received said they should.

If this is the case and (e.g.) Deutsche Bank holds the line, does a future (presumably Democratic) Congress have power to punish them? Sanction them to such a degree that they can't do business with American banks or American companies?

ImLawBoy wrote: Tue May 12, 2020 4:27 pm I wouldn't at all be surprised for the court to decide it's a political issue that they can't weigh in on - that's a classic SCOTUS maneuver to avoid refereeing disputes between the legislative and executive branch. That would essentially let the existing rulings stand, but whether the banks would still comply to turn things over is a separate issue. The banks have said they'd comply with a SCOTUS ruling, so I'd hope they'd then see this as their opportunity to release the records knowing that the highest ruling they've received said they should.

I think they've said that they would release the material unless blocked, so my expectation is that they'd release the material. But who knows for sure.

But I'm skeptical that Roberts would be on board for the political question ruling - it's just too far reaching, as it would effectively shut down Congressional oversight of the executive branch for a long and unpredictable future. Would invite greater brinksmanship in the immediate future - I think House democrats would really start to think about breaking out their inherent contempt power.

If he's inclined to help Trump I think a "the House can enforce subpoenas, but only if they send the subpoenas on a Monday, Wednesday, or Friday, and unfortunately these were sent on a Tuesday, but the Lower court can consider whether to exercise judgment and allow the subpoenas to be resent" ruling would be more likely.

El Guapo wrote: Tue May 12, 2020 4:21 pm

malchior wrote: Tue May 12, 2020 4:14 pm Circling back - most of the judges sounded very skeptical about Trump's case. That's good news. Let's see how the decision goes before we count chickens but we might have a stay of Hungary-ship.

That's good. It's hard to overstate how bonkers it would be legally to side with Trump on this.

I do worry whether the majority might just find some procedural issue to latch onto to justify booting it down to the lower courts, such that they don't block subpoenas but where they delay the results past November.

In Mazars, they are holding a procedural card. They were searching for a limit to the power to subpoena and didn't seem to get an answer that satisfied them.

Holman wrote: Tue May 12, 2020 4:51 pm

ImLawBoy wrote: Tue May 12, 2020 4:27 pm I wouldn't at all be surprised for the court to decide it's a political issue that they can't weigh in on - that's a classic SCOTUS maneuver to avoid refereeing disputes between the legislative and executive branch. That would essentially let the existing rulings stand, but whether the banks would still comply to turn things over is a separate issue. The banks have said they'd comply with a SCOTUS ruling, so I'd hope they'd then see this as their opportunity to release the records knowing that the highest ruling they've received said they should.

If this is the case and (e.g.) Deutsche Bank holds the line, does a future (presumably Democratic) Congress have power to punish them? Sanction them to such a degree that they can't do business with American banks or American companies?

This gets at the heart of the danger we face. If they rule or let lower courts rulings stand and they don't...well that's bad. It's another constitutional crisis moment. The DOJ or perhaps a regulator would need to step in to enforce it. And Barr's DOJ and most of the administration isn't afraid to be dirty. The only real lever Congress would have would be to haul them in and yell at them. They won't be able to pass a law that Trump signs and he wouldn't enforce it anyway. The whole system relies on the President to not be massively corrupt which is why we are in danger in the first place. It is clear that the President holds too much power and nothing stops him if his party is afraid of him which they almost always will be.

Justice Kavanaugh exposes himself as a partisan, activist judge. It's a stretch for his dissent to argue there is no government justification for limiting church services, or comparing a church service to walking down a pew or the grocery store aisles.

Zarathud wrote: Sat May 30, 2020 2:46 amJustice Kavanaugh exposes himself as a partisan, activist judge.

Sure but that is why they fought so hard for him.

Zarathud wrote: Sat May 30, 2020 2:46 am Justice Kavanaugh exposes himself as a partisan, activist judge.

I’m confused, was there somehow ever a doubt about this?

Zarathud wrote: Sat May 30, 2020 2:46 am Justice Kavanaugh exposes himself as a partisan, activist judge. It's a stretch for his dissent to argue there is no government justification for limiting church services, or comparing a church service to walking down a pew or the grocery store aisles.

Before the ruling Popehat was suggesting that argument was pretty solid due to the special constitutional protections for religion.

This actually deals with SCOTUS holding that an employer who fires an employee for merely being homosexual or transgender violates Title VII. Full decision here, written by Gorsuch, when the SCOTUS website stops being funny.

SCOTUS also denied cert on a bunch of 2nd Amendment and qualified immunity cases, though Thomas really thinks its time for QI to be revisited, along with denying cert on DOJ's California sanctuary city case.

Supreme Court rules existing civil rights law protects gay and lesbian workers

https://www.nbcnews.com/politics/suprem ... n-n1231018

Defiant wrote: Mon Jun 15, 2020 10:17 am Supreme Court rules existing civil rights law protects gay and lesbian workers

https://www.nbcnews.com/politics/suprem ... n-n1231018

*BAM!*

Gorsuch wrote the opinion w/ Roberts and the "Libs" joining. The SCOTUS server is getting hit so hard that you can't even get the PDF right now.

Predictably Alito and Thomas call this 'legislating' from the bench. This one was a whopper. Apparently the doc is 172 pages. Many feelings in the SCOTUS on this one.

pr0ner wrote: Mon Jun 15, 2020 10:06 am

This actually deals with SCOTUS holding that an employer who fires an employee for merely being homosexual or transgender violates Title VII. Full decision here, written by Gorsuch, when the SCOTUS website stops being funny.

Seems to be working now - I got it easily.

This is shaping up to a be a perfect highlight of the dysfunction in the United States government. On Friday the Trump administration enshrines a rule establishing a policy of discrimination against LGBT persons in health care. On Monday, the SCOTUS basically says employers aren't allowed to do that. Not entirely matched up in the details but at a high level it is...oy vey.

stessier wrote: Mon Jun 15, 2020 10:33 amSeems to be working now - I got it easily.

You got lucky. Still not working here. It is hit or miss for folks on SCOTUSblog.

malchior wrote: Mon Jun 15, 2020 10:37 am This is shaping up to a be a perfect highlight of the dysfunction in the United States government. On Friday the Trump administration enshrines a rule establishing a policy of discrimination against LGBT persons in health care. On Monday, the SCOTUS basically says employers aren't allowed to do that. Not entirely matched up in the details but at a high level it is...oy vey.

Luckily, The Supremes win in that argument.

This comes from Page 3 - and the last sentence should really be used a lot more often.

(c) The employers do not dispute that they fired their employees for
being homosexual or transgender. Rather, they contend that even intentional discrimination against employees based on their homosexual
or transgender status is not a basis for Title VII liability. But their
statutory text arguments have already been rejected by this Court’s
precedents. And none of their other contentions about what they think
the law was meant to do, or should do, allow for ignoring the law as it
is. Pp. 15–33.

malchior wrote: Mon Jun 15, 2020 10:38 am

stessier wrote: Mon Jun 15, 2020 10:33 amSeems to be working now - I got it easily.

You got lucky. Still not working here. It is hit or miss for folks on SCOTUSblog.

If you want, PM me an email address and I'll send it to you (and anyone else looking for it).

Edit: Wow - it's a 23MB PDF. I think I can email that...Gmail handles attachments that large, right?

malchior wrote:This is shaping up to a be a perfect highlight of the dysfunction in the United States government. On Friday the Trump administration enshrines a rule establishing a policy of discrimination against LGBT persons in health care. On Monday, the SCOTUS basically says employers aren't allowed to do that. Not entirely matched up in the details but at a high level it is...oy vey.

Or as they would say in court, oyez!

malchior wrote: Mon Jun 15, 2020 10:37 am This is shaping up to a be a perfect highlight of the dysfunction in the United States government. On Friday the Trump administration enshrines a rule establishing a policy of discrimination against LGBT persons in health care. On Monday, the SCOTUS basically says employers aren't allowed to do that. Not entirely matched up in the details but at a high level it is...oy vey.

You wonder how this dysfunction impacts the thinking of the Justices. The most compelling argument that the dissenters have in this case (IMO) is that Congress clearly did not intend to protect against sexual orientation discrimination when they passed the law, and that while we recognize that that's a worthy goal now, that's a legislative task for Congress to consider when passing protections like this.

One problem with that argument is that as a practical matter our government is so borked that while (I think) majorities favor sexual orientation protections, such a law would not wind up getting passed and signed for quite a long time. So that the effect of a SCOTUS decision the other direction would be a lack of orientation discrimination provisions for the foreseeable future. Did that factor into Roberts' and/or Gorsuch's personal reasoning?

LOL.

Love that "religious liberty" requires the active deprivation of liberty.

stessier wrote: Mon Jun 15, 2020 10:52 am

malchior wrote: Mon Jun 15, 2020 10:38 am

stessier wrote: Mon Jun 15, 2020 10:33 amSeems to be working now - I got it easily.

You got lucky. Still not working here. It is hit or miss for folks on SCOTUSblog.

If you want, PM me an email address and I'll send it to you (and anyone else looking for it).

Edit: Wow - it's a 23MB PDF. I think I can email that...Gmail handles attachments that large, right?

Thanks! No need. It worked eventually. It was more an indicator of how (un)popular that decision was. The Trump ones will probably rock the house too.

I'm enjoying the right-wing Twitter meltdowns. Ben Shapiro is having a fit as expected. He is calling it a major disruption to employement law. Lol. Here is how disruptive I imagine it'll be:

HR: "Oh we can't discriminate based on sexual orientation? Ok, I'll go update the policy and training for next year. Everyone good?". Fin.

malchior wrote: Mon Jun 15, 2020 11:28 am

stessier wrote: Mon Jun 15, 2020 10:52 am

malchior wrote: Mon Jun 15, 2020 10:38 am

stessier wrote: Mon Jun 15, 2020 10:33 amSeems to be working now - I got it easily.

You got lucky. Still not working here. It is hit or miss for folks on SCOTUSblog.

If you want, PM me an email address and I'll send it to you (and anyone else looking for it).

Edit: Wow - it's a 23MB PDF. I think I can email that...Gmail handles attachments that large, right?

Thanks! No need. It worked eventually. It was more an indicator of how (un)popular that decision was. The Trump ones will probably rock the house too.

I'm enjoying the right-wing Twitter meltdowns. Ben Shapiro is having a fit as expected. He is calling it a major disruption to employement law. Lol. Here is how disruptive I imagine it'll be:

HR: "Oh we can't discriminate based on sexual orientation? Ok, I'll go update the policy and training for next year. Everyone good?". Fin.

Plus this was federal law during the Obama administration, and even during the Trump administration there was at least uncertainty. I would assume that HR guidance before this decision was "It's unclear whether the law prohibits sexual orientation discrimination, but there's a high chance that it does, and even if it doesn't it's really bad PR for us, so don't do it." So they just need to update that to, "It's definitely illegal, and it's really bad PR for us, so don't do it."

I think the real story here is how Kavanaugh keeps delivering for the GOP, as he promised whomever paid off his credit card debt. I hope we get to learn about Supreme Court Justice recall and/or Supreme Court Justice appointment/process/structure reform in January 2021.

Smoove_B wrote: Mon Jun 15, 2020 11:46 am I think the real story here is how Kavanaugh keeps delivering for the GOP, as he promised whomever paid off his credit card debt. I hope we get to learn about Supreme Court Justice recall and/or Supreme Court Justice appointment/process/structure reform in January 2021.

FWIW my impression is that Gorsuch has been more reliable for conservatives overall thus far.

El Guapo wrote: Mon Jun 15, 2020 11:00 am

malchior wrote: Mon Jun 15, 2020 10:37 am This is shaping up to a be a perfect highlight of the dysfunction in the United States government. On Friday the Trump administration enshrines a rule establishing a policy of discrimination against LGBT persons in health care. On Monday, the SCOTUS basically says employers aren't allowed to do that. Not entirely matched up in the details but at a high level it is...oy vey.

You wonder how this dysfunction impacts the thinking of the Justices. The most compelling argument that the dissenters have in this case (IMO) is that Congress clearly did not intend to protect against sexual orientation discrimination when they passed the law, and that while we recognize that that's a worthy goal now, that's a legislative task for Congress to consider when passing protections like this.

One problem with that argument is that as a practical matter our government is so borked that while (I think) majorities favor sexual orientation protections, such a law would not wind up getting passed and signed for quite a long time. So that the effect of a SCOTUS decision the other direction would be a lack of orientation discrimination provisions for the foreseeable future. Did that factor into Roberts' and/or Gorsuch's personal reasoning?

I haven't read the dissents yet, but the Court's Opinion laid out a pretty strong case. It may be an unintended consequence of the writing of the law, but it's hard to say that the plain reading doesn't protect against sexual orientation discrimination.

Now watch me read the dissents and come back with "well, they have a point...".

stessier wrote: Mon Jun 15, 2020 11:54 am Now watch me read the dissents and come back with "well, they have a point...".

Holy cow is this not the case. Alito completely misses the point over and over and over again. It's like he's purposely sticking his head in the sand. He refuses to see that the sex of the person is intrinsic to the definition of their sexual orientation.

He goes after the party of the model employee that the majority laid out and upped the guest list to 4:
Man brings Woman
Woman brings Woman

Man brings Man
Woman brings Man

Showing who the employer excludes, Alito says, shows that it is something other than sex that is being discriminated against.

But that makes no sense. List only "X brings Woman" very clearly shows that the sex of X is exactly what is being discriminated against. I just don't get it.

I've still got 30 pages to read, but it's a slog.

Alito says that "sex" must be defined exactly the way that lawmakers understood that term in 1964. I'm skeptical he'll apply that same rule to defining what counts as "arms" when reading the Second Amendment.

Kavanaugh's dissent boils down to "Congress knew that sexual orientation was a thing and they didn't include it in the statute, so it's not included." I still think this misses the point and find him unconvincing. He spends a lot of time with examples of things. He must like lists.

Edit: Actually, that's not it. He says that sexual discrimination and sexual orientation discrimination are two separate things and always have been understood to be so. He points to numerous places where they are listed individually to show that they are understood to be separate. Then he reaches his conclusion. The majority rejects this because to discriminate on orientation, you must take the sex of the subject into account, thus Title VII attaches. All the dissent disagree with that key point. I find the majority opinion far more convincing.

malchior wrote: Mon Jun 15, 2020 11:28 am I'm enjoying the right-wing Twitter meltdowns. Ben Shapiro is having a fit as expected. He is calling it a major disruption to employement law. Lol. Here is how disruptive I imagine it'll be:

HR: "Oh we can't discriminate based on sexual orientation? Ok, I'll go update the policy and training for next year. Everyone good?". Fin.

Actually, for a lot of employers (like mine), it'll be more like, "Oh, we can't discriminate based on sexual orientation? Well, we've had that in our policies and training for years now, so I guess I'll surf the web for a while."