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SCOTUS Watch

For discussion of religion and politics

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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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malchior
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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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Jaymann
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Re: SCOTUS Watch

Post by Jaymann »

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

Post by Little Raven »

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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malchior
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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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El Guapo
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Re: SCOTUS Watch

Post by El Guapo »

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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Smoove_B
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Re: SCOTUS Watch

Post by Smoove_B »

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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coopasonic
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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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El Guapo
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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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malchior
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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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El Guapo
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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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Carpet_pissr
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Re: SCOTUS Watch

Post by Carpet_pissr »

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....
malchior
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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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pr0ner
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Re: SCOTUS Watch

Post by pr0ner »

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

Hodor.
malchior
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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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Isgrimnur
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Re: SCOTUS Watch

Post by Isgrimnur »

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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