SCOTUS Watch

[Isgrimnur]

Yes, but the government will still copy the encrypted contents and store them indefinitely until they can crack them without your assistance.

[Exodor]

Apparently Scalia goofed

It's not often that a Supreme Court justice makes a factual blunder in a formal opinion.

Legal experts say Justice Antonin Scalia erred in his dissent in the 6-2 decision Tuesday to uphold the Environmental Protection Agency's authority to regulate coal pollution that moves across state lines. The Reagan-appointed jurist argued that the majority's decision was inconsistent with a unanimous 2001 ruling which he mistakenly said shot down EPA efforts to consider costs when setting regulations.

"This is not the first time EPA has sought to convert the Clean Air Act into a mandate for cost-effective regulation. Whitman v. American Trucking Assns., Inc., 531 U. S. 457 (2001), confronted EPA's contention that it could consider costs in setting [National Ambient Air Quality Standards]," Scalia wrote in his dissent, which was joined by Justice Clarence Thomas.

The problem: the EPA's position in the 2001 case was exactly the opposite. The agency was defending its refusal to consider cost as a counter-weight to health benefits when setting certain air quality standards. It was the trucking industry that wanted the EPA to factor in cost. The 9-0 ruling sided with the EPA. The author of the ruling that Scalia mischaracterized? Scalia himself.

The conservative justice's error was noted by University of California-Berkeley law professor Dan Farber, who called it "embarrassing" and a "cringeworthy blunder."

[Scraper]

Apparently Scalia goofed

It's not often that a Supreme Court justice makes a factual blunder in a formal opinion.

Legal experts say Justice Antonin Scalia erred in his dissent in the 6-2 decision Tuesday to uphold the Environmental Protection Agency's authority to regulate coal pollution that moves across state lines. The Reagan-appointed jurist argued that the majority's decision was inconsistent with a unanimous 2001 ruling which he mistakenly said shot down EPA efforts to consider costs when setting regulations.

"This is not the first time EPA has sought to convert the Clean Air Act into a mandate for cost-effective regulation. Whitman v. American Trucking Assns., Inc., 531 U. S. 457 (2001), confronted EPA's contention that it could consider costs in setting [National Ambient Air Quality Standards]," Scalia wrote in his dissent, which was joined by Justice Clarence Thomas.

The problem: the EPA's position in the 2001 case was exactly the opposite. The agency was defending its refusal to consider cost as a counter-weight to health benefits when setting certain air quality standards. It was the trucking industry that wanted the EPA to factor in cost. The 9-0 ruling sided with the EPA. The author of the ruling that Scalia mischaracterized? Scalia himself.

The conservative justice's error was noted by University of California-Berkeley law professor Dan Farber, who called it "embarrassing" and a "cringeworthy blunder."

I have a feeling his staff is about to have a very bad day.

[Pyperkub]

Apparently Scalia goofed

It's not often that a Supreme Court justice makes a factual blunder in a formal opinion.

Legal experts say Justice Antonin Scalia erred in his dissent in the 6-2 decision Tuesday to uphold the Environmental Protection Agency's authority to regulate coal pollution that moves across state lines. The Reagan-appointed jurist argued that the majority's decision was inconsistent with a unanimous 2001 ruling which he mistakenly said shot down EPA efforts to consider costs when setting regulations.

"This is not the first time EPA has sought to convert the Clean Air Act into a mandate for cost-effective regulation. Whitman v. American Trucking Assns., Inc., 531 U. S. 457 (2001), confronted EPA's contention that it could consider costs in setting [National Ambient Air Quality Standards]," Scalia wrote in his dissent, which was joined by Justice Clarence Thomas.

The problem: the EPA's position in the 2001 case was exactly the opposite. The agency was defending its refusal to consider cost as a counter-weight to health benefits when setting certain air quality standards. It was the trucking industry that wanted the EPA to factor in cost. The 9-0 ruling sided with the EPA. The author of the ruling that Scalia mischaracterized? Scalia himself.

The conservative justice's error was noted by University of California-Berkeley law professor Dan Farber, who called it "embarrassing" and a "cringeworthy blunder."

Scalia's ideology trumping the facts, of course. I am not surprised.

[Pyperkub]

A little bit more- apparently this little blunder renders his entire dissent incorrect - and he WROTE the initial Opinion in the case:

Justice Scalia’s dissent is a bit peculiar. It begins, as Ann noted, with a concern about unelected agency officials making policy rather than Congress. Since Scalia is a big fan of executive power, that seems a little odd coming from him. In addition, as he surely must know, the White House is very much involved in regulations of this importance, so the transport rule wasn’t exactly under the control of unelected agency workers....

...[NOTE: After this was posted, the opinion on the Court's website was revised to eliminate Scalia's error. Of course, as corrected, the case no longer fits Scalia's overall thesis of the "unelected officials" trying to override Congressional policy.]

The worst justice on the bench, IMHO. My guess is that like a good conservative meme, he saw EPA, and ran with ideology over the facts.

[Zarathud]

Someone on his staff definitely had a bad day -- and the staffers for the majority are kicking themselves over a lost opportunity to point it out!

[Pyperkub]

Someone on his staff definitely had a bad day -- and the staffers for the majority are kicking themselves over a lost opportunity to point it out!

I don't think it was his staff - he wrote the initial opinion in the case he was relying upon as well.

Maybe someone should have called him on it, but that's probably the extent of it.

I have The Princess Bride in mind "I don't think that word means what you think it means...".

[Scraper]

Someone on his staff definitely had a bad day -- and the staffers for the majority are kicking themselves over a lost opportunity to point it out!

I don't think it was his staff - he wrote the initial opinion in the case he was relying upon as well.

Maybe someone should have called him on it, but that's probably the extent of it.

I have The Princess Bride in mind "I don't think that word means what you think it means...".

I don't see how any federal judge, let alone a Supreme Court Judge with over 30 years experience could actually read a case and get the controlling law of the case completely wrong. As much as I despise Scalia I just don't see him making this mistake on his own. Most likely he saw this case as less important than others on the docket and assigned it to a staff member and told them what the conclusion should be. He can't be expected to know the law of every single case in the federal courts, but he should at least have someone check the cases he sites for accuracy and good law.

[Zarathud]

The Supreme Court gets a lot of submissions and the writing process is iterative. It is very easy for the judge to remember that a case is on topic, then ask someone to look it up by name or ask to find the case on your point. If a clerk or staff member summarized the holding incorrectly, it's possible to incorporate into later work product.

The job of the clerks and other staff is to check for accuracy -- not just Scalia, but all of the other Justices. Justice Ginsburg would would have loved to use the precedent against Scalia in chambers.

What's really troubling is not the error itself, but its insight into Scalia's thought process by confirming his internal bias.

[Defiant]

Supreme Court upholds legislative prayer at council meetings

The Supreme Court overturned that ruling. Kennedy said the analysis would be different if the town’s prayers were coercive. But he said there was no evidence that “town board members directed the public to participate in the prayers, singled out dissidents for opprobrium, or indicated that their decisions might be influenced by a person’s acquiescence in the prayer opportunity. No such thing occurred in the town of Greece.”

Joining Kennedy in the outcome were Chief Justice John G. Roberts Jr. and Justices Antonin Scalia, Clarence Thomas and Samuel A. Alito Jr.

Thomas and Scalia differed from the rest on the issue of coercion. Thomas questioned whether the constitution’s Establishment Clause applies to state and local governments. Even if it does, he said, only “actual legal coercion” to participate in religious activities would count. Peer pressure, he said, would not be enough.

[Zarathud]

Just wait until the first first non-Christian demands an opportunity for non-coercive prayers. Hail Eris! Hail FSM!! Hail our Octopus Overlords!

[Holman]

Just wait until the first first non-Christian demands an opportunity for non-coercive prayers. Hail Eris! Hail FSM!! Hail our Octopus Overlords!

Not a chance. Alabama Chief Justice Roy Moore has got it covered.

I'm kind of glad I don't live in the South right now. They are going to take that SCOTUS decision and fucking run with it.

[Pyperkub]

Activist judges

[Zarathud]

Looks like the Satanists already raised $28,000 in a campaign to put a Satanic Monument at the Oklahoma capitol. Expect a tour of lawsuits while this thing is looking for a home.

As Greaves put it, “There are no shortage of public locations across the US where religious monuments await a contrasting voice.”

Thanks, Supreme Court!

[Carpet_pissr]

Looks like the Satanists already raised $28,000 in a campaign to put a Satanic Monument at the Oklahoma capitol.

This is why we can't have nice things.

[Isgrimnur]

If you're going to mount a legal defense on openness and inclusiveness, don't be surprised when people try to call you on it.

[msduncan]

Guys guys.... this prayer thing. I'm all with embracing other cultures and religions at meetings. We are the melting pot (even more today than in the past).

[Holman]

Guns at town meetings are so 2012.

[Grifman]

Just wait until the first first non-Christian demands an opportunity for non-coercive prayers. Hail Eris! Hail FSM!! Hail our Octopus Overlords!

Actually, they did. In the case at hand, non-Christians, including rabbis and even a Wiccan priest requested to have the opportunity to say prayers and they were offered and took the opportunity. Sorry to burst your bubble there

[Fretmute]

Just wait until the first first non-Christian demands an opportunity for non-coercive prayers. Hail Eris! Hail FSM!! Hail our Octopus Overlords!

Actually, they did. In the case at hand, non-Christians, including rabbis and even a Wiccan priest requested to have the opportunity to say prayers and they were offered and took the opportunity. Sorry to burst your bubble there

On the hand, there's this guy.

[Grifman]

Just wait until the first first non-Christian demands an opportunity for non-coercive prayers. Hail Eris! Hail FSM!! Hail our Octopus Overlords!

Actually, they did. In the case at hand, non-Christians, including rabbis and even a Wiccan priest requested to have the opportunity to say prayers and they were offered and took the opportunity. Sorry to burst your bubble there

On the hand, there's this guy.

I suspect that if any religion requests the opportunity to pray and were turned down, it would end up back at the SC and they would rule in the other religions favor. I think their position is that sectarian prayers are ok but you can't exclude anyone. But we'll have to see what this decision lets loose.

[Fretmute]

For what it's worth, I tried to fix that typo, but back to back posts get Tapatalk IPs blacklisted. Anyway, I suspect you're right. But we're still headed for more shenanigans.

[Scraper]

Just wait until the first first non-Christian demands an opportunity for non-coercive prayers. Hail Eris! Hail FSM!! Hail our Octopus Overlords!

Actually, they did. In the case at hand, non-Christians, including rabbis and even a Wiccan priest requested to have the opportunity to say prayers and they were offered and took the opportunity. Sorry to burst your bubble there

On the hand, there's this guy.

I suspect that if any religion requests the opportunity to pray and were turned down, it would end up back at the SC and they would rule in the other religions favor. I think their position is that sectarian prayers are ok but you can't exclude anyone. But we'll have to see what this decision lets loose.

This could easily turn into a comedy bit where every meeting is opened up by ten different prayers from ten different religions. The effort of "inclusion" could take longer than the actual meeting.

[raydude]

Just wait until the first first non-Christian demands an opportunity for non-coercive prayers. Hail Eris! Hail FSM!! Hail our Octopus Overlords!

Actually, they did. In the case at hand, non-Christians, including rabbis and even a Wiccan priest requested to have the opportunity to say prayers and they were offered and took the opportunity. Sorry to burst your bubble there

In the interest of full disclosure I felt that bit needed to be expanded:

But they were the exceptions. Almost every other “chaplain of the month” during a decade of town board meetings in this Rochester suburb was a Christian, and more often than not called on Jesus Christ or the Holy Spirit to guide the council’s deliberations.

And my edit to add this tidbit from same article:

The board drew its volunteer chaplains from a list of churches in the town. It said anyone would have been welcomed but did not publicize the opportunity. The board neither created rules for the prayers nor screened them beforehand.

After the lawsuit was threatened, the town made more of an effort — that’s how the Baha’i representative and the Wiccan got involved

[El Guapo]

Just wait until the first first non-Christian demands an opportunity for non-coercive prayers. Hail Eris! Hail FSM!! Hail our Octopus Overlords!

Actually, they did. In the case at hand, non-Christians, including rabbis and even a Wiccan priest requested to have the opportunity to say prayers and they were offered and took the opportunity. Sorry to burst your bubble there

On the hand, there's this guy.

I suspect that if any religion requests the opportunity to pray and were turned down, it would end up back at the SC and they would rule in the other religions favor. I think their position is that sectarian prayers are ok but you can't exclude anyone. But we'll have to see what this decision lets loose.

That's what really worries me. Especially in the more devout towns (where this decision is more likely to be abused) what family is going to want to be the heretics suing the town?

[GreenGoo]

Didn't you read the decision?

Peer pressure is not enough.

[Holman]

Worse than the simple fact of prayer in government will be the content of it.

You know the most invested politicos aren't going to limit opening prayers to generic blessings. They're going to stage-manage fiery little sermonettes that clearly declare God to be on one side of whatever issue is coming up. This will now be an official part of gov't business.

[Pyperkub]

Didn't you read the decision?

Peer pressure is not enough.

My concern is more for those who take Kennedy's advice and walk out. Hello recall!

[Isgrimnur]

You don't get much clearer than a unanimous verdict:

Federal authorities were wrong to charge a Pennsylvania woman with violating an international chemical weapons ban after she tried to use poison against her former best friend in a dispute over her cheating husband, the US Supreme Court declared on Monday.

The high court ruled unanimously that prosecutors should not have charged Carol Anne Bond with violating a federal statute related to the Chemical Weapons Convention.

The unusual case involved a simple assault through the use of poison that resulted in a minor thumb burn, rather than an attempt to deploy toxic chemicals to cause mass casualties and engage in chemical warfare, the court said.

Use of the chemical weapons statute to prosecute Ms. Bond amounted to a substantial and unwarranted expansion of federal authority into an area of law adequately covered by state criminal statutes in Pennsylvania, the justices said.

“The global need to prevent chemical warfare does not require the Federal Government to reach into the kitchen cupboard, or to treat a local assault with a chemical irritant as the deployment of a chemical weapon,” Chief Justice John Roberts wrote in a 21-page decision.
...
All nine justices concurred in the judgment, but three conservative justices – Antonin Scalia, Clarence Thomas, and Samuel Alito – concluded that the federal statute clearly applied in the Bond case.

They concurred in the end result because, in their view, the underlying statute violated broader constitutional limits on congressional authority to impose such sweeping laws under a treaty. Their objections centered on the court using its own interpretation of the federal statute to avoid confronting the broader constitutional issue.
...
Given that conclusion, Scalia said, the court had no alternative but to decide whether applying the chemical weapons statute to Bond’s conduct was constitutional. He concluded that the statute was unconstitutional.

[Carpet_pissr]

good grief...how did that get all the way to SCOTUS?

[Isgrimnur]

I honestly don't understand the appeal process. Do you get to appeal every single time that you lose until they just deny cert? Or do you actually have to come up with some justification?

[El Guapo]

I honestly don't understand the appeal process. Do you get to appeal every single time that you lose until they just deny cert? Or do you actually have to come up with some justification?

I'm not sure what exactly you mean, but you get to appeal any ruling against you. You obviously have to give some reason why the ruling against you was wrong (though appellate courts give deference to lower courts on rulings of fact, so if you're arguing that the lower court got the facts wrong you have a tough argument). However, you don't get to appeal everything *right away*. Some rulings can be appealed right away ('interlocutory' appeals), but others you have to wait until the end of the trial before you can appeal (at which point you can raise a variety of arguments).

Stuff that can be appealed right away is, broadly speaking, rulings where you couldn't get full relief if you had to appeal later. Like a double jeopardy argument - wouldn't make sense to force someone to go through a second trial before allowing the appellate court to decide whether it is legal to force them to go through a second trial.

[Isgrimnur]

you get to appeal any ruling against you.

That's what I thought, but it sounded odd.

Stuff that can be appealed right away is, broadly speaking, rulings where you couldn't get full relief if you had to appeal later. Like a double jeopardy argument - wouldn't make sense to force someone to go through a second trial before allowing the appellate court to decide whether it is legal to force them to go through a second trial.

I'd been following the Popehat coverage on the anti-SLAPP coverage, and that sounds pretty much with what I'd understood there.

Thank you.

[stessier]

I'd been following the Popehat coverage on the anti-SLAPP coverage

I miss Ken's updates.

[Grifman]

good grief...how did that get all the way to SCOTUS?

Whose bright idea was it to waste my tax money to begin with to prosecute this under an international treaty clearly aimed at terrorism. This was just plain stupid. It's like using a nuke to kill a flea. The prosecutors ought to be embarrassed.

[GreenGoo]

I'd been following the Popehat coverage on the anti-SLAPP coverage

I miss Ken's updates.

Where is Ken? Haven't seen anything by him in awhile, but didn't hear anything either. Busy working?

[stessier]

I'd been following the Popehat coverage on the anti-SLAPP coverage

I miss Ken's updates.

Where is Ken? Haven't seen anything by him in awhile, but didn't hear anything either. Busy working?

He's mentioned before he battles depression and doesn't write when he's on a down cycle. This one has lasted longer than most, so maybe just work or a combination of the two.

[Pyperkub]

Hopefully he's found a great RPG to immerse himself in...

[Isgrimnur]

Now we're tackling the big issues: Coca-Cola Can Be Sued Over Juice Drink

The Supreme Court on Thursday unanimously allowed a false advertising suit against a Coca-Cola juice blend to move forward, saying the company’s practices “allegedly mislead and trick consumers, all to the injury of competitors.”

The blend, sold under Coca-Cola’s Minute Maid brand, is made almost entirely from apple and grape juice. But it is called “Pomegranate Blueberry,” followed in smaller type by the phrase “Flavored Blend of 5 Juices.”

Justice Anthony M. Kennedy, writing for the court, said the blend contained a “minuscule amount of pomegranate and blueberry juices.” More specifically, he said, the beverage is made up of “99.4 percent apple and grape juices, 0.3 percent pomegranate juice, 0.2 percent blueberry juice and 0.1 percent raspberry juice.”

“The product’s front label,” he added, “also displays a vignette of blueberries, grapes and raspberries in front of a halved pomegranate and a halved apple.”

Pom Wonderful, which sells pomegranate juice, sued Coca-Cola for false advertising. Lower courts dismissed the suit, saying Congress had entrusted the regulation of juice labels to the Food and Drug Administration.

The legal question in the case was how to harmonize two federal laws, one allowing private lawsuits over misleading advertising and the other authorizing federal regulation of food labels. The question was a variation on one often confronted by the justices, that of whether and when a federal law displaces, or pre-empts, a state law.

Justice Kennedy said the two federal laws had different purposes. The false-advertising law, the Lanham Act, “is for competitors, not consumers,” he wrote. It is enforced in large part through private lawsuits.

The second law, the Food, Drug and Cosmetic Act, he wrote, “is designed primarily to protect the health and safety of the public at large.” Federal regulators and prosecutors, he added, have “nearly exclusive enforcement authority.”
...
Justice Kennedy rejected a middle-ground position advanced by the Justice Department, which had weighed in as a friend of the court. It said Pom could not sue over the name of the Coca-Cola product but could challenge other aspects of the label.

Justice Kennedy said the proposed distinction was “a bridge too far.”

Justice Stephen G. Breyer did not participate in the case, Pom Wonderful v. Coca-Cola Co., No. 12-761. Consistent with its usual practice, the court did not say why he had disqualified himself from the case.
...
If “Coca-Cola stands behind this label as being fair to consumers,” Justice Kennedy told the company’s lawyer, “then I think you have a very difficult case to make. I think it’s relevant for us to ask whether people are cheated in buying this product.”

The lawyer, Kathleen M. Sullivan, said, “we don’t think that consumers are quite as unintelligent as Pom must think they are,” adding: “They know when something is a flavored blend of five juices and the nonpredominant juices are just a flavor.”

Justice Kennedy frowned. “Don’t make me feel bad,” he said, “because I thought that this was pomegranate juice.”

[Isgrimnur]

Straw firearms purchases

The Supreme Court Monday made it harder for people to hide gun purchases, ruling it illegal for a legal gun owner to buy a firearm on behalf of someone else.

Writing the majority opinion in the 5-4 decision in Abramski v. United States, Justice Elena Kagan said gun purchasers may not act as "straw purchasers," making it a crime to buy guns on behalf of third parties while claiming to make the purchase for personal use.
...
Kagan's opinion was joined by Justices Stephen Breyer, Ruth Bader Ginsburg, Anthony Kennedy and Sonia Sotomayor.

In his dissent, Justice Antonin Scalia argued that the finding runs counter to federal gun laws, making it "a federal crime for one lawful gun owner to buy a gun for another lawful gun owner."

"Whether or not that is a sensible result, the statutes Congress enacted to do not support it -- especially when, as is appropriate, we resolve ambiguity in those statues in favor of the accused."

Scalia was joined in his dissent by Chief Justice John Roberts and Justices Samuel Alito and Clarence Thomas.

The ruling upheld the conviction of former police officer Bruce Abramski, Jr., of Virginia, who was convicted of falsely claiming he was the buyer of a gun he was actually purchasing for his uncle, Angel Alvarez.

Alvarez sent a check for $400 to Abramski, who then went to a gun dealer and wrote "yes" on a required form claiming he was the actual purchaser. Abramski was sentenced to three years of probation.