SCOTUS Watch

[GreenGoo]

Remember the scandal at the use of the word "deplorables"?

Quaint.

[YellowKing]

I think another problem is that the rot has spread all the way down to state and local levels. I used to feel there was a bit of buffer between DC insanity and state/city politics, which tended to be a bit more moderate. But now you've got vast swaths of the party at all levels believing the election was rigged and drag queens are coming to eat our children. It's fascists all the way down.

[Kraken]

I think another problem is that the rot has spread all the way down to state and local levels. I used to feel there was a bit of buffer between DC insanity and state/city politics, which tended to be a bit more moderate. But now you've got vast swaths of the party at all levels believing the election was rigged and drag queens are coming to eat our children. It's fascists all the way down.

I read a story last night about how Michigan is in danger from grassroots efforts to turn the newly blue state red again. The gist was that Republicans are methodically taking over school boards and local governments -- they've been dislodged from state offices for the time being, but they're regrouping. Wish I could remember where I saw it but a couple of keyword searches came up blank.

[Zarathud]

Leo made financial payments to Ginni Thomas for “judicial opinion polling” via an intermediary (Conway) specifically mentioning that she not be named.

Even in Illinois, that’s bribery and corruption which can get you jailed. Ask the ComEd 4.

[malchior]

This is what Zarathud is referring to. I don't know what to say anymore. Remember that Leo is a long time leader of the "non-partisan" Federalist society.

[gbasden]

It's hard to stress how badly things are broken here, but we're stuck, and I expect it will eventually end in bloodshed.

I honestly don't see a lot of possibilities for it not to end in bloodshed at the rate things are decaying.

[malchior]

[malchior]

Dang indeed. Durbin is a nice guy. Biden is a nice guy. Our nation is being steamrolled by bad actors. The time for nice guys is in the past.



For example:



When pressed by a reporter about this discrepancy Durbin urged Republicans to work with the WH (what year is it!?) and while he was frustrated he wasn't frustrated enough to support a change in the rule being abused.

[LawBeefaroni]

Things are going well for them.. Why cause problems?

[waitingtoconnect]

Leo made financial payments to Ginni Thomas for “judicial opinion polling” via an intermediary (Conway) specifically mentioning that she not be named.

Even in Illinois, that’s bribery and corruption which can get you jailed. Ask the ComEd 4.

Unless the person owneth a Supreme Court justice or is an agent acting for the owner of a Supreme Court justice in which case the penalty be one smacketh with a limp lettuce.

[waitingtoconnect]

Dang indeed. Durbin is a nice guy. Biden is a nice guy. Our nation is being steamrolled by bad actors. The time for nice guys is in the past.



For example:



When pressed by a reporter about this discrepancy Durbin urged Republicans to work with the WH (what year is it!?) and while he was frustrated he wasn't frustrated enough to support a change in the rule being abused.

What they won’t do is break the rules because they are part of a system that is now being used against all of us.

The designers of the two party system did not anticipate one party may work together across different levels of government to actively bully the checks and balances out of the way.

Now we are seeing more democrats even long time democrats deserting and moving to the GOP like in North Carolina the other day. It’s only a matter of time before we see it in the House.

[malchior]

First talk about potential live free and die tyranny, second this is where we might start to see states start to attempt to ignore SCOTUS. NY probably has no appetite for unelected tyrants overuling their regulation of arms after the Buffalo shooting. Nothing says well-regulated like nazis blowing children's faces off their heads on a weekend outing to the outlets.

[Unagi]

I guess as long as they control Federal laws, they don’t really care about the States’ independence.

[malchior]

I guess as long as they control Federal laws, they don’t really care about the States’ independence.

They were all states' rights - to use them as reactors for autocracy - up until they had the power to express their tyranny broadly. They weren't always like this but the decay over the last 20 years has manifested in a level of support for democracy that was inverse to how much impedance democracy had on the only legitimate power - GOP right to rule.

[El Guapo]

Is there room for a targeted pushback as to the shadow docket? Like NY could essentially take the position that overruling state laws procedurally requires a full argument, hearing, and written decision, and that since this putative action is missing that it is invalid.

Of course, presumably the parties litigate that and it winds up before the SCOTUS again, but even just getting them to respond to that in a full decision would be of some use.

[Smoove_B]

Is there room for a targeted pushback as to the shadow docket? Like NY could essentially take the position that overruling state laws procedurally requires a full argument, hearing, and written decision, and that since this putative action is missing that it is invalid.

Has this ever been done for not-guns? Because if there's been broad acceptance by the system to accept shadow docket rulings for everything else, why should guns (from a procedural standpoint) be any different?

[El Guapo]

Is there room for a targeted pushback as to the shadow docket? Like NY could essentially take the position that overruling state laws procedurally requires a full argument, hearing, and written decision, and that since this putative action is missing that it is invalid.

Has this ever been done for not-guns? Because if there's been broad acceptance by the system to accept shadow docket rulings for everything else, why should guns (from a procedural standpoint) be any different?

There isn't an obvious reason why this would be limited to not guns, so presumably the position would be that this applies to all laws, not just gun laws. I suspect that this would be a relatively novel position (not an expert on it), but the shadow docket was intended to be for routine / non-controversial matters. Since it's very much being used for matters way beyond that, some type of response seems appropriate.

[Kurth]

States ignoring Supreme Court rulings is not a place we want to go. That would truly be a constitutional crisis. Not saying it won't happen, but that strikes me as the true beginning of the end.

[Smoove_B]

States ignoring Supreme Court rulings is not a place we want to go. That would truly be a constitutional crisis. Not saying it won't happen, but that strikes me as the true beginning of the end.

I think we're well beyond the beginning of the end. I'd say ignoring a Supreme Court ruling would bring our end to a middle.

[Kurth]

States ignoring Supreme Court rulings is not a place we want to go. That would truly be a constitutional crisis. Not saying it won't happen, but that strikes me as the true beginning of the end.

I think we're well beyond the beginning of the end. I'd say ignoring a Supreme Court ruling would bring our end to a middle.

That definitely crystalizes a difference in perspective.

[El Guapo]

States ignoring Supreme Court rulings is not a place we want to go. That would truly be a constitutional crisis. Not saying it won't happen, but that strikes me as the true beginning of the end.

This is part of why I was thinking about whether there's a shadow docket specific angle for NY to take here. Flat out saying that we're ignoring this decision because we dislike it is untenable for a million different reasons. But a narrower response seems appropriate, can be useful to signal to the public that something bad and unprecedented is in process, and still works within the rule of law.

[Carpet_pissr]

States ignoring Supreme Court rulings is not a place we want to go. That would truly be a constitutional crisis.

With election denying and ignoring subpoenas from Congress already happening, we’re already where you’re suggesting we don’t want to go IMO.

[Kurth]

States ignoring Supreme Court rulings is not a place we want to go. That would truly be a constitutional crisis.

With election denying and ignoring subpoenas from Congress already happening, we’re already where you’re suggesting we don’t want to go IMO.

I disagree. States flat out refusing to comply with a Supreme Court ruling would require federal military intervention. Or not, in which case, the Supreme Court no longer has authority and one of our 3 branches of government is rendered a nullity.

[ImLawBoy]

States officially ignoring the SCOTUS is not a serious solution/response. From the functionality of the prospect (are we expecting the enforcement mechanism of such state laws, i.e. the local police, to enforce the local laws that they probably disagree with when they have clear cover from SCOTUS?) to the Constitutional issues to the more far-fetched (but still concerning!) ideas that there are those in the military who might see federal government failing to respond to states' noncompliance as a justification to intervene, it's just silly.

[LawBeefaroni]

States ignoring Supreme Court rulings is not a place we want to go. That would truly be a constitutional crisis.

With election denying and ignoring subpoenas from Congress already happening, we’re already where you’re suggesting we don’t want to go IMO.

I disagree. States flat out refusing to comply with a Supreme Court ruling would require federal military intervention. Or not, in which case, the Supreme Court no longer has authority and one of our 3 branches of government is rendered a nullity.

Would it require military intervention? I mean is it statutory? Because cutting federal funding and other resources seems like a more likely path.

[malchior]

There are also a range of middle ground options that localities/states might go after to forestall outright flipping off a ruling. For instance, revoking business licenses from gun shops, certificates of occupancies, etc. But I don't see NY or NJ allowing completely unrestricted access to 30-round clips and AR-15s. End stop. If we don't resist it that'll be my cue to get out of this insane asylum at least. We're not interested in this nonsense.

States officially ignoring the SCOTUS is not a serious solution/response. From the functionality of the prospect (are we expecting the enforcement mechanism of such state laws, i.e. the local police, to enforce the local laws that they probably disagree with when they have clear cover from SCOTUS?) to the Constitutional issues to the more far-fetched (but still concerning!) ideas that there are those in the military who might see federal government failing to respond to states' noncompliance as a justification to intervene, it's just silly.

It isn't a lawful response but when systems break down they often break down over red line issues (e.g. slavery). Another line might be a federal abortion ban. There are several potential fault lines out there. There was a great piece recently - which I may try to dig back up - which talked about how this was the first Supreme Court that was drifting completely out of line with the guardrails governing how American's see issues in our society. It's unfortunately a possibility we have to think about now.

[Smoove_B]

That was my thinking, but I didn't want to jump topics. Everyone is focused on guns right now because that's been set up as the current issue. But lurking in the corner is the potential for a federal ban on abortions. Or a federal ban on specific elements associated with abortions - medications and/or the ability to mail things. What then? If the Supreme Court somehow rules a federal ban is appropriate, am I to believe states will just comply with that?

Guns are definitely a concern, but they're not the only concern.

Case in point. I guarantee someone is going to file suit over something related to this that will somehow worm its way up to the Supreme Court, because reasons.

[Kurth]

That was my thinking, but I didn't want to jump topics. Everyone is focused on guns right now because that's been set up as the current issue. But lurking in the corner is the potential for a federal ban on abortions. Or a federal ban on specific elements associated with abortions - medications and/or the ability to mail things. What then? If the Supreme Court somehow rules a federal ban is appropriate, am I to believe states will just comply with that?

Guns are definitely a concern, but they're not the only concern.

Case in point. I guarantee someone is going to file suit over something related to this that will somehow worm its way up to the Supreme Court, because reasons.

Yep. Great question, and one I've been thinking about a lot. Personally, I think a federal abortion ban breaks the system in a way that a ban on local gun control measures does not.

[GreenGoo]

It seems to me plenty of red states were already doing their best to ignore obamacare requirements. Doesn't it make a difference if it's the executive or judicial branch being ignored?

[Little Raven]

Yep. Great question, and one I've been thinking about a lot.

Why? There is no possible path to a Federal abortion ban at the moment. You would need a majority in the House, which I don't think exists, and a filibuster-proof majority in the Senate, which defies imagination. THEN you would need a President that would sign it.

I realize Republicans like to talk a big game about this, but its just as implausible as Democratic plans for Federal gun control. The votes just aren't there, and won't ever be there barring some sea-change in the electorate.

[Kurth]

Yep. Great question, and one I've been thinking about a lot.

Why? There is no possible path to a Federal abortion ban at the moment. You would need a majority in the House, which I don't think exists, and a filibuster-proof majority in the Senate, which defies imagination. THEN you would need a President that would sign it.

I realize Republicans like to talk a big game about this, but its just as implausible as Democratic plans for Federal gun control. The votes just aren't there, and won't ever be there barring some sea-change in the electorate.

You're right, of course, with respect to legislation. But the recent and ongoing attempt to overrule the FDA on mifepristone shows that there are other more creative and nefarious ways the GOP can try to assert their will nation-wide.

And we're not really talking about legislation here. We're talking about the Supreme Court. Once the 5th Circuit does its bit and upholds the crazy ruling from Judge Kacsmaryk, this question is going to be squarely before the Supreme Court.

Not the same thing as a federal abortion ban, and, as mentioned before, the FDA has its own mechanisms to legally combat a crazy SCOTUS ruling on this (they can simply not enforce). So, the world isn't going to end. But still . . . not good.

[Carpet_pissr]

It seems to me plenty of red states were already doing their best to ignore obamacare requirements. Doesn't it make a difference if it's the executive or judicial branch being ignored?

That was the gist of my comment.. there’s already plenty of ignoring and norm-breaking going on. This would be yet another step.

If Jan 6 doesn’t alert us to that reality, I don’t know what would.

[El Guapo]

Yep. Great question, and one I've been thinking about a lot.

Why? There is no possible path to a Federal abortion ban at the moment. You would need a majority in the House, which I don't think exists, and a filibuster-proof majority in the Senate, which defies imagination. THEN you would need a President that would sign it.

I realize Republicans like to talk a big game about this, but its just as implausible as Democratic plans for Federal gun control. The votes just aren't there, and won't ever be there barring some sea-change in the electorate.

You're right, of course, with respect to legislation. But the recent and ongoing attempt to overrule the FDA on mifepristone shows that there are other more creative and nefarious ways the GOP can try to assert their will nation-wide.

And we're not really talking about legislation here. We're talking about the Supreme Court. Once the 5th Circuit does its bit and upholds the crazy ruling from Judge Kacsmaryk, this question is going to be squarely before the Supreme Court.

Not the same thing as a federal abortion ban, and, as mentioned before, the FDA has its own mechanisms to legally combat a crazy SCOTUS ruling on this (they can simply not enforce). So, the world isn't going to end. But still . . . not good.

There's no plausible path to a federal abortion ban now, but it's not crazy to think it's possible in 2025. The 2024 Senate map is gruesome for the Democrats. The odds of the GOP controlling Congress and the presidency in 2025 are not small. Yeah the filibuster would be a problem, but the filibuster is going to be abolished sooner or later, so I'm not counting on it or the likes of Susan Collins to save us.

[Little Raven]

And we're not really talking about legislation here. We're talking about the Supreme Court. Once the 5th Circuit does its bit and upholds the crazy ruling from Judge Kacsmaryk, this question is going to be squarely before the Supreme Court.

Well, guns and abortion are two very different things. And yeah, I think Assault Weapon bans are unlikely to survive the next few years regardless of what happens on the Shadow Docket. The Second Amendment is a thing, and it's pretty difficult to argue that an AR-15 is an "unusual" weapon these days - heck, sometimes it seems as if you can barely walk down the street without tripping over one. We'll probably have to make our peace with that - at least until we can amend the Constitution.

[Smoove_B]

There's no plausible path to a federal abortion ban now, but it's not crazy to think it's possible in 2025. The 2024 Senate map is gruesome for the Democrats. The odds of the GOP controlling Congress and the presidency in 2025 are not small. Yeah the filibuster would be a problem, but the filibuster is going to be abolished sooner or later, so I'm not counting on it or the likes of Susan Collins to save us.

Members of the GOP (including the former VP) have explicitly stated they want a federal ban. They're not even trying to hide their intentions, so pretending like it could never happen or there's no way for it to occur is foolish, imho.

And they don't even need full control - look what happened with Dobbs. I feel like the gun issue is already settled - we've clearly established we love guns and there's no going back. But the abortion issue? Real damage was done in 2022 and now that settled case law has been dismantled, apparently it's just a matter of time now before they finish what they've been pushing for 40+ years.

[Little Raven]

There's no plausible path to a federal abortion ban now, but it's not crazy to think it's possible in 2025. The 2024 Senate map is gruesome for the Democrats. The odds of the GOP controlling Congress and the presidency in 2025 are not small. Yeah the filibuster would be a problem, but the filibuster is going to be abolished sooner or later, so I'm not counting on it or the likes of Susan Collins to save us.

If the filibuster is abolished, I fear we just get yo-yo policy for as long as we can hold on. Abortion will be illegal for a few years, then the Democrats will take over, abortion will be legalized and the Court will have 13 members, then the Republicans will take over, the Department of Education will be abolished and the Court will have 17 members, then the Democrats will take over, the firearms industry will be nationalized and the Court will have 21 members, and so on and so forth. It'll be a fun ride.

[Smoove_B]

I think it's cute you believe once the GOP is able to fully get back into power they're ever going to let it go again. We're at the point now where state legislatures are openly kicking Democrats out of the building or just voting to have them removed. And that's ok now, apparently.

[Little Raven]

I think it's cute you believe once the GOP is able to fully get back into power they're ever going to let it go again.

I think it's cute that you believe the GOP is competent enough to hold power forever. They can't even agree on a budget strategy. It took them 15 votes to settle on a Speaker. This is not a party that is prepared to go the distance.

[malchior]

Kurth gets it. Congress isn't the venue for much of this. They'll influence via spending still but policy of the United States will be largely driven by Republican Presidents (when they win the every 4 year coin flip) and SCOTUS via targeted lawsuits funneled through friendly jurists. That's the emerging pattern. The Democrats may sign onto "bipartisan" efforts" but they may very well be largely bystanders now as every one of their policy and legislative wins are filibustered, defunded, whittled down or ruled illegal.

[El Guapo]

There's no plausible path to a federal abortion ban now, but it's not crazy to think it's possible in 2025. The 2024 Senate map is gruesome for the Democrats. The odds of the GOP controlling Congress and the presidency in 2025 are not small. Yeah the filibuster would be a problem, but the filibuster is going to be abolished sooner or later, so I'm not counting on it or the likes of Susan Collins to save us.

If the filibuster is abolished, I fear we just get yo-yo policy for as long as we can hold on. Abortion will be illegal for a few years, then the Democrats will take over, abortion will be legalized and the Court will have 13 members, then the Republicans will take over, the Department of Education will be abolished and the Court will have 17 members, then the Democrats will take over, the firearms industry will be nationalized and the Court will have 21 members, and so on and so forth. It'll be a fun ride.

It's amazing how other countries manage to not have wild swings in policy without filibuster rules in place.