SCOTUS Watch

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Little Raven
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Re: SCOTUS Watch

Post by Little Raven »

El Guapo wrote: Fri Apr 09, 2021 2:05 pm and (2) implicitly threaten the SCOTUS conservative majority - if you go too nuts on conservative judicial activism then we'll push hard on this and take away the conservative majority.
But that's not something Biden can do. That would require congressional action, and if Manchin isn't down with nuking the filibuster, I don't think he'll be down with packing the court. (which would require nuking the filibuster as well) So as a threat, it's pretty hollow.

Your first point is spot on, though.
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Re: SCOTUS Watch

Post by malchior »

Apropos pro of Biden's commission announcement SCOTUS delivers a majority opinion that lifts all in-home blanket coronavirus restrictions because they impacted religious activities. This is despite treating them equally which was an adjustment to SCOTUS decisions during the pandemic. The majority essentially argued that because they treat the at home restrictions differently than business restrictions that there is a different standard. This could have been reasonable if the at home restrictions were targeted at religious activity. That wasn't what anyone argued. Instead the majority conjured this test out of thin air.

Kagan's dissent decided to take her turn whacking on the integrity of the new majority and Roberts didn't join the dissent though he voted with the minority. I suspect that is because of the tone of the dissent. I also suspect the justices who signed the dissent thought it was important to speak truth to power when the impact is as critical and the reasoning so flawed and biased as the majority opinion appears here.
The First Amendment requires that a State treat religious conduct as well as the State treats comparable secular conduct. Sometimes finding the right secular analogue may raise hard questions. But not today. California limits religious gatherings in homes to three households. If the State also limits all secular gatherings in homes to three households, it has complied with the First Amendment. And the State does exactly that: It has adopted a blanket restriction on athome gatherings of all kinds, religious and secular alike.

California need not, as the per curiam insists, treat at-home religious gatherings the same as hardware stores and hair salons—and thus unlike at-home secular gatherings, the obvious comparator here. As the per curiam’s reliance on separate opinions and unreasoned orders signals, the law does not require that the State equally treat apples and watermelons.

And even supposing a court should cast so expansive a comparative net, the per curiam’s analysis of this case defies the factual record. According to the per curiam, “the Ninth Circuit did not conclude that” activities like frequenting stores or salons “pose a lesser risk of transmission” than
applicants’ at-home religious activities. But Judges Milan Smith and Bade explained for the court that those activities do pose lesser risks for at least three reasons. First, “when people gather in social settings, their interactions are likely to be longer than they would be in a commercial setting,” with participants “more likely to be involved in prolonged conversations.”

Second, “private houses are typically smaller and less ventilated than commercial establishments.” And third, “social distancing and mask-wearing are less likely in private settings and enforcement is more difficult.”

These are not the mere musings of two appellate judges: The district court found each of these facts based on the uncontested testimony of California’s public-health experts. (noting that the applicants “do not dispute any of these findings”). No doubt this evidence is inconvenient for the per curiam’s preferred result. But the Court has no warrant to ignore the record in a case that
(on its own view, see ante, at 2) turns on risk assessments.

In ordering California to weaken its restrictions on at home gatherings, the majority yet again “insists on treating unlike cases, not like ones, equivalently.” And it once more commands California “to ignore its experts’ scientific findings,” thus impairing “the State’s effort to address a public health emergency.” Ibid. Because the majority continues to disregard law and facts alike, I respectfully dissent from this latest per curiam decision.
Last edited by malchior on Sat Apr 10, 2021 11:05 am, edited 2 times in total.
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Re: SCOTUS Watch

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Of course the rubes are free to define their weekly poker game as a "prayer meeting."
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Re: SCOTUS Watch

Post by malchior »

Good thread about the divergence in norms we are seeing from the new majority. They have done more work on the 'shadow docket' than the main one (more than double the usual amount so far this term). He isn't talking about his conclusions about why it is happening here (more on tha below the tweet). A quick scan though sure looks like churches that want to claim absolute religious freedom even if it harms public health now have the court's ear.



He talks about why this is troubling at The Atlantic.

The ;tldr is that the court is undermining its legitimacy by ruling on cases without argumentation and without explaining itself. In other words, acting more like collective autocrats. Which is what some of us were worried about. It looks like we have the outlines of yet another problem in our democracy to worry about. So far, they've just made the public sicker and ensured Trump could execute people before he walked out the door (really) but I doubt they stop here.
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Re: SCOTUS Watch

Post by malchior »

More background on the troubling Friday night California coronavirus injunction.
Mark Joseph Stern: Jim, you’ve said Tandon begins with a “whopper.” What is it?

Jim Oleske: In the very beginning, the court said its prior decisions had “made the following points clear.” It then laid out the “most favored nation” theory of religious exemptions. The principal authority cited is the Roman Catholic Diocese v. Cuomo decision from this past fall—in which the court did not adopt that theory! Instead, the court said that New York had singled out religion for disfavored treatment, which would be consistent with Smith. It was only in separate opinions that various justices talked about “most favored nation” theory explicitly—the same justices who were talking about it in dissents over the summer before Justice Amy Coney Barrett had joined the court.

How does this new theory conflict with Smith?

Oleske: Smith says the free exercise clause of the First Amendment protects against the government targeting religious practice for disfavored treatment, but does not grant a right to exemptions from general law. Almost immediately after Smith, there were efforts to read into it a broader “most favored nation” theory that said: Any time the government grants an exemption to a law, it has an obligation to grant a religious exemption, too, unless the government meets strict scrutiny. But that was not the law of the land until Friday night.

Steve Vladeck: I think Friday night’s ruling drives home exactly why the rise of the shadow docket is so problematic. To be a little nerdy for a second, what the Supreme Court did on Friday was issue an injunction pending appeal. This is an extraordinary form of relief. Unlike when the court issues a stay—where it says, hey, lower courts we’re putting your decision on hold—here the court is acting directly against the government. It’s directly enjoining Gov. Newsom when lower courts have refused to do so.

As the Supreme Court has said for decades, its authority to issue that form of relief is very limited. There’s a very widely cited in-chambers opinion by Justice Antonin Scalia from 1986 where he says the court is only supposed to issue such relief “sparingly, and only in the most critical and exigent circumstances,” where “the legal rights at issue are indisputably clear.” It’s the “indisputably clear” part that makes what Jim said so important. Everyone understands that the court made new law on Friday, that the court changed the scope and meaning and applicability of the free exercise clause. Folks are going to disagree about whether or not this new approach is a good one. My point is, this is not something the court is allowed to do in a shadow docket ruling like this. Its own precedents preclude it from making new law in this context because, by definition, a newly minted right cannot have been “indisputably clear.”
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Re: SCOTUS Watch

Post by Smoove_B »

Might need a bigger thread

Congressional Democrats plan to unveil legislation expanding the size of the Supreme Court from 9 justices to 13.

The bill is led in the House by Jerry Nadler, Hank Johnson, and Mondaire Jones.

In the Senate, the bill is being championed by Ed Markey.
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Re: SCOTUS Watch

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I wonder if they'll still think expanding the Court is a good idea when Republicans retake the White House. :D
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Re: SCOTUS Watch

Post by malchior »

What a waste of time. As usual the Democrats can't help but trip over their own dicks. They are rudderless fools. The story here is that days after Biden announces a reform commission these fools rush out legislation that has no chance of passing. This is why the Republicans run rings around them while wielding power.
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Re: SCOTUS Watch

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Little Raven wrote: Wed Apr 14, 2021 10:16 pm I wonder if they'll still think expanding the Court is a good idea when Republicans retake the White House. :D
Yeah, God forbid the Republicans might be able to jigger their way into a conservative SCOTUS majority.
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Re: SCOTUS Watch

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malchior wrote: Wed Apr 14, 2021 10:20 pm What a waste of time. As usual the Democrats can't help but trip over their own dicks. They are rudderless fools. The story here is that days after Biden announces a reform commission these fools rush out legislation that has no chance of passing. This is why the Republicans run rings around them while wielding power.
But then we wouldn't get delicious tweets like this one:


Democrats keep showing they don’t care about norms and institutions, only power. The latest example: a bill to pack the Supreme Court and destroy its legitimacy to guarantee the rulings liberals want.
Like...he actually wrote that (or told someone to write it in his name) and didn't immediately burst into flames.
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Re: SCOTUS Watch

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In his defense he didn't say HE cared about them either.
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Re: SCOTUS Watch

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As an aside, can someone go to DC and bludgeon Breyer into retiring already?
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Re: SCOTUS Watch

Post by malchior »

El Guapo wrote: Thu Apr 15, 2021 4:13 pm As an aside, can someone go to DC and bludgeon Breyer into retiring already?
Breyer is bristling at this idea like Ginsburg did. In fact, he went off on the Biden commission idea at a Harvard talk - decrying court packing as if it hadn't already occurred. Sigh.
The 82-year-old Breyer contended that public trust in the court rests in the public’s perception that “the court is guided by legal principle, not politics” and would therefore be eroded if the court’s structure were changed in response to concerns about the influence of politics on the Supreme Court.
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Re: SCOTUS Watch

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I swear, if Breyer doesn't retire before the mid-terms I'm going to set myself on fire. WTF is the problem with liberal justices.
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Re: SCOTUS Watch

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malchior wrote:
that public trust in the court rests in the public’s perception that “the court is guided by legal principle, not politics” and would therefore be eroded .
Umm, I’m not sure how to break this to you, but....
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Re: SCOTUS Watch

Post by malchior »

Juvenile life without parole is back in full swing in the United States.

Sotomayor went *off* on Kavanaugh in the dissent (example below). This is beginning to appear to be a radically reactionary court now and they are trying to mask that fact. That ain't good.



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Re: SCOTUS Watch

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Check out this lineup in today's lone SCOTUS decision.

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Re: SCOTUS Watch

Post by malchior »

I was just skimming this. It is definitely a curiosity of an opinion. The ;tldr is the government for this one law can't send someone a legal notice to remove a person from the United States in discrete pieces *and* start the time clock on a timely response.
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Re: SCOTUS Watch

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Holding: A notice to appear sufficient to trigger the Illegal Immigration Reform and Immigrant Responsibility Act of 1996’s stop-time rule is a single document containing all the information about an individual’s removal hearing specified in 8 U.S.C. § 1229(a)(1).

Judgment: Reversed, 6-3, in an opinion by Justice Gorsuch on April 29, 2021. Justice Kavanaugh filed a dissenting opinion, in which Chief Justice Roberts and Justice Alito joined.
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Re: SCOTUS Watch

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Re: SCOTUS Watch

Post by Skinypupy »

Whelp, Roe was nice while it lasted.

Fully preparing the US to take a massive leap backwards in reproductive rights. Don't really see a path where that doesn't happen here.
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Re: SCOTUS Watch

Post by Ralph-Wiggum »

Especially since there was no split in the lower courts for this case. No reason for the SC to take it on unless they were planning to overturn it.
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Re: SCOTUS Watch

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Don't forget, Kavanaugh personally assured Susan Collins Roe V. Wade is settled law. Back in 2018:
Collins met with Kavanaugh behind closed doors for more than two hours Tuesday morning. She described the meeting as productive and informative and said the wide-ranging discussion touched on precedent and the application of the legal principle stare decisis to abortion cases, executive power, the District of Columbia v. Heller decision and which judges he admires and feels he’s most similar to.
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Re: SCOTUS Watch

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Part of me wonders whether we'd be better off at this point with Roe formally overturned. Functionally it's 90% dead letter already, since states like TX are free to reduce the number of abortion clinics to 0 - 3 through ridiculous regulations transparently designed only to shut down the clinics. And I feel like overturning Roe would mobilize pro-choice voters way more than pro-life voters.

I guess we'll probably find out, in any event.
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Re: SCOTUS Watch

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El Guapo wrote: Mon May 17, 2021 11:37 amFunctionally it's 90% dead letter already, since states like TX are free to reduce the number of abortion clinics to 0 - 3 through ridiculous regulations transparently designed only to shut down the clinics.
Exactly. Honestly, repealing Roe vs. Wade would change very little on the ground. Blue states would keep abortion legal, red states would outlaw it. But most of those red states have already crushed abortion access through various other means to the point where it's almost always easier to just travel to another state if that's a service you require. According to my friends that live there, Albuquerque NM does fantastic business providing said services to Texans.
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Re: SCOTUS Watch

Post by malchior »

I'd just like a decision so obvious that everyone could see that the court is radically reactionary now. Just like 1/6 it'd be nice for people to be forced to acknowledge reality. Especially since it'll have little on the ground impact.
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Re: SCOTUS Watch

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Little Raven wrote: Mon May 17, 2021 11:45 am
El Guapo wrote: Mon May 17, 2021 11:37 amFunctionally it's 90% dead letter already, since states like TX are free to reduce the number of abortion clinics to 0 - 3 through ridiculous regulations transparently designed only to shut down the clinics.
Exactly. Honestly, repealing Roe vs. Wade would change very little on the ground. Blue states would keep abortion legal, red states would outlaw it. But most of those red states have already crushed abortion access through various other means to the point where it's almost always easier to just travel to another state if that's a service you require. According to my friends that live there, Albuquerque NM does fantastic business providing said services to Texans.
I remember that my Constitutional Law professor that I had in my first year of law school kept beating the drum in class that "Roe has already been overruled". I didn't totally get his point then, but I do now (and that was back in 2004, when the situation's only gotten worse since then).
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Re: SCOTUS Watch

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SCOTUSBlog
On Monday, the Supreme Court released its opinion in Caniglia v. Strom, which unanimously held that a lower court’s extension of Cady v. Dombrowski’s “community caretaking” exception into the home defied the logic and holding of Cady, as well as violated the Fourth Amendment’s warrant requirement. With the court’s unanimity in Caniglia, the home remains the most sacred space under the Fourth Amendment; its sanctity literally houses its privilege. Sans warrant, exigency or consent, governmental search and seizure within it is unconstitutional.

During an August 2015 argument with his wife, Edward Caniglia offered her one of his unloaded guns and requested that she put him out of his misery. Instead, she threatened to call 911. After the couple’s argument continued, she left the marital home to overnight at a hotel. When she returned the next day, she enlisted Cranston, Rhode Island’s police department to perform a wellness check on her husband. They did. They also arranged transportation for Edward to obtain a psychiatric evaluation at a local hospital. He agreed to go, but only after officers purportedly agreed not to confiscate his weapons. However, as soon as he left, officers — apparently by deceiving his wife — entered the Caniglia home and seized Caniglia’s handguns and ammunition. Caniglia sued, alleging that the officers violated his Fourth Amendment rights. The U.S. Court of Appeals for the 1st Circuit sided with the officers by relying on Cady, a 1973 decision that upheld the warrantless “caretaking” search of a car that had been in an accident.

The court’s opinion, written by Justice Clarence Thomas, was devoid of the fearsome, compelling specter raised in the briefing and during argument regarding the potential for troubling eventualities — for instance, that Caniglia may have harmed himself or his wife (or, perhaps, other innocent/intervening victims). A pithy four pages “long,” the opinion was unanimous and unambiguous: If police do not have the homeowner’s consent, an “exigent” circumstance, or a judicial warrant authorizing a search, then no version of Cady’s car exception applies to police entry into the home under the Fourth Amendment. “What is reasonable for vehicles is different from what is reasonable for homes,” Thomas wrote.
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Re: SCOTUS Watch

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Isgrimnur wrote: Mon Apr 20, 2020 5:50 pm WaPo
The Supreme Court on Monday ruled 6 to 3 that state court juries must be unanimous to convict a defendant of a serious crime, a decision that scrambled the court’s usual ideological lineups and prompted soul-searching among some justices about when to overturn precedent.
SCOTUSBlog
The Supreme Court on Monday ruled by a vote of 6-3 that inmates whose convictions became final before last year’s decision in Ramos v. Louisiana, holding that the Constitution’s Sixth Amendment establishes a right to a unanimous jury that applies in both federal and state courts, cannot take advantage of it on federal collateral review. The geographical impact of Monday’s decision is limited to Louisiana and Oregon – the only two states that have allowed non-unanimous jury verdicts in recent years. The decision means that hundreds of people who were found guilty by non-unanimous juries in those two states before Ramos will not get to seek to have their convictions overturned.
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Re: SCOTUS Watch

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Obamacare (or what's left of it) lives to fight another day - 7-2.

Breyer wrote the decision and a quick skim shows they took the 'lack of standing' off ramp saying Texas et. al. didn't have standing to challenge the now unenforceable individual mandate. This is not a surprise though I can't wait to give a quick read to the sure to be inane dissent.

Edit: Quick analysis/remind on this - the GOP set the penalty for the individual mandate to $0 and the IRS still tracks it but there is no penalty anymore. The GOP kicked a major foundational leg out from the ACA. This lawsuit said that because the mandate was now not enforceable that it was unconstitutional, the penalty wasn't severable, so the entire Act was unconstitutional. SCOTUS essentially dodges all that and hits the 'easy button' on the whole issue. That it was 7-2 shows that view is fairly durable and this attack is over. It's safe to say we can assume another is on the horizon.

Edit 2: Alito wrote the dissent and it isn't as inane as I expected. It is however a whole heap load of grievance about the twists and turns of the ACA legal challenges. He seems to be lamenting that the GOP's dastardly plans aren't being accepted by the court. In effect, my quick read is that he accepts that the $0 penalty means it isn't a "tax" anymore and the whole act providing healthcare to millions of people should tumble down at the stroke of a pen in a whiff of "logic".
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Re: SCOTUS Watch

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The big decision many of us have been waiting for was Fulton and it came down. At face value, this is a unanimous decision to allow Catholic organizations to discriminate against LGBT+ people with city dollars. The interesting part is that it appears that Roberts might have convinced the 3 liberals to join the decision by compromising since there was a good chance they would have overturned a 1990 decision Employment Division v. Smith. In a sense, the liberals struck a 'conservative' deal to preserve precedent by signing onto something that is less bad than the other outcomes in their opinion. Wacky times are ahead for SCOTUS but also a dreadful trash policy is affirmed by SCOTUS. It ain't Dred Scott but it's also not awesome in any way.

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The non-discrimination requirement of the City’s standard foster care contract is not generally applicable. Section 3.21 of the contract requires an agency to provide services defined in the contract to prospective foster parents without regard to their sexual orientation. But section 3.21 also permits exceptions to this requirement at the “sole discretion” of the Commissioner. This inclusion of a mechanism for entirely discretionary exceptions renders the non-discrimination provision not generally applicable.
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Re: SCOTUS Watch

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I was hoping the Republicans would get a chance to break out their awesome HC plan, but I guess we'll just have to wait a little longer. It's horrifying that they find it ok to try and toss millions of people off coverage just because.
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Re: SCOTUS Watch

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Isgrimnur wrote: Thu Jun 17, 2021 11:35 am
The non-discrimination requirement of the City’s standard foster care contract is not generally applicable. Section 3.21 of the contract requires an agency to provide services defined in the contract to prospective foster parents without regard to their sexual orientation. But section 3.21 also permits exceptions to this requirement at the “sole discretion” of the Commissioner. This inclusion of a mechanism for entirely discretionary exceptions renders the non-discrimination provision not generally applicable.
There's your roadmap around it.
Yep - the risk is that the Conservatives wanted to tear up the precedent so does Philly give them a second bite at the apple if they take Roberts up on his "fix"?
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Re: SCOTUS Watch

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malchior wrote: Thu Jun 17, 2021 4:29 pm
Isgrimnur wrote: Thu Jun 17, 2021 11:35 am
The non-discrimination requirement of the City’s standard foster care contract is not generally applicable. Section 3.21 of the contract requires an agency to provide services defined in the contract to prospective foster parents without regard to their sexual orientation. But section 3.21 also permits exceptions to this requirement at the “sole discretion” of the Commissioner. This inclusion of a mechanism for entirely discretionary exceptions renders the non-discrimination provision not generally applicable.
There's your roadmap around it.
Yep - the risk is that the Conservatives wanted to tear up the precedent so does Philly give them a second bite at the apple if they take Roberts up on his "fix"?
I'd also want to knw why they needed the option in the first place. There might be a good reason to have a "sole discretion" fail safe.
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Re: SCOTUS Watch

Post by Unagi »

Sounds like they added a stupid exception to their rule.

They should remove it and ‘re-apply’.
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Re: SCOTUS Watch

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Ive gotten a silly grin each time Ive seen a headline on SCOTUS and their telling the GOP to pound sand all day.
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Re: SCOTUS Watch

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Daehawk wrote: Thu Jun 17, 2021 7:49 pm Ive gotten a silly grin each time Ive seen a headline on SCOTUS and their telling the GOP to pound sand all day.
I wouldn't get too used to it.
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Re: SCOTUS Watch

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The Supreme Court’s Newest Justices Produce Some Unexpected Results
The arrival of Justice Amy Coney Barrett in October seemed to create a 6-to-3 conservative juggernaut that would transform the Supreme Court.

Instead, judging by the 39 signed decisions in argued cases so far this term, including two major rulings on Thursday, the right side of the court is badly fractured and its liberal members are having a surprisingly good run.

That picture may change, as the court has yet to issue the term’s last 15 decisions. But some trends have already come into focus.

The conventional wisdom last fall was that Chief Justice John G. Roberts Jr.’s leadership, with its bias toward incrementalism and moderation, was over. With five justices to his right, including three appointed by President Donald J. Trump, the chief justice’s ability to guide the court was thought to have evaporated.

The story of the term so far, though, is a different one. Indeed, it is the court’s most conservative members who are issuing howling dissents and aggrieved concurrences to protest a majority they say is too cautious.

That majority very often includes Mr. Trump’s appointees, notably Justice Brett M. Kavanaugh, who is now at the court’s ideological center, replacing the chief justice.

This term, Justice Kavanaugh has voted with the majority in divided cases 87 percent of the time, more than any other member of the court, according to data compiled by Lee Epstein and Andrew D. Martin of Washington University in St. Louis and Kevin Quinn of the University of Michigan.

In his entire tenure, which started in 2018, Justice Kavanaugh has been in the majority 85 percent of the time, the highest rate of any justice since 1953.

“Kavanaugh’s record of voting with the majority in divided cases is extraordinary,” Professor Epstein said.

The two other Trump appointees are not far behind. Justice Barrett is second, having voted with the majority 82 percent of the time this term. And Justice Neil M. Gorsuch tied for third with Justice Elena Kagan, a member of the court’s liberal wing, at 80 percent. Justice Kagan’s rate of voting with the majority jumped 12 percentage points since last term.
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Little Raven
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Joined: Wed Oct 13, 2004 10:26 am
Location: Austin, TX

Re: SCOTUS Watch

Post by Little Raven »

Supreme Court sides with athletes.
The Supreme Court handed a unanimous victory Monday to Division I college athletes in their fight against the National Collegiate Athletic Association over caps it sought to impose on compensation related to education.

The court voted 9-0 to affirm lower court rulings that found that antitrust law prevented the NCAA from restricting payments to athletes for items such as musical instruments or as compensation for internships. The justices rejected the NCAA’s argument that its players’ amateur status would be impossible to maintain if they could receive pay, even for education-related expenses.

“Put simply, this suit involves admitted horizontal price fixing in a market where the defendants exercise monopoly control,” Justice Neil Gorsuch wrote for the court.

The conservative justice, an appointee of former President Donald Trump, wrote that it was “unclear exactly what the NCAA seeks.”

“To the extent it means to propose a sort of judicially ordained immunity from the terms of the Sherman Act for its restraints of trade — that we should overlook its restrictions because they happen to fall at the intersection of higher education, sports, and money — we cannot agree,” Gorsuch wrote.

The outcome was largely expected following oral argument in March. The decision upheld an injunction imposed by a federal district court that barred the NCAA from limiting “compensation and benefits related to education.” The 9th U.S. Circuit Court of Appeals earlier approved of the injunction.
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