U.S. Supreme Court: Post-Nino Edition

who belonged and who uh belonged

white men with property?

nice one, silby

but it is absolutely correct that even an originalist reading of the constitution shows that rights not specifically assigned to citizens were meant to include immigrants and even travelers present in the U.S.

Ian Millhiser with a sharp analysis:

Broadly speaking, there are two different approaches to the law on the Supreme Court’s right flank.

Justice Samuel Alito is the consummate partisan. Unlike his other conservative colleagues, Alito has never cast the key fifth vote to throw a decision to the Court’s liberals. He’s also far more inclined to manipulate existing doctrines than to overrule them — claiming that longstanding doctrines actually require progressive laws to be read narrowly, even when such claims are the opposite of the truth. Alito tends to view each case in isolation. And, whenever possible, he presents the best arguments he can muster to gain a conservative result in each particular case.

At the other end of the spectrum is Justice Clarence Thomas. Less partisan and more ideological, Thomas is willing to push much further than Alito, and he has no compunctions about explicitly overruling major precedents. For example, under Thomas’ theory of the Constitution, child labor laws and the federal ban on whites-only lunch counters are unconstitutional. Unlike Alito, however, Thomas thinks in terms of broad principles rather than in terms of isolated efforts to move the law to the right. On rare occasions, this broader approach to the law places Thomas to the left of his fellow justices.

Which brings us to Tuesday’s decision in Sessions v. Dimaya, a 5-4 decision where Neil Gorsuch sided with the four liberals in favor of an immigrant convicted of burglary. Gorsuch’s vote, and his separate opinion in Dimaya, confirms that he is much more a Thomas than he is an Alito. He is willing to hand liberals a small victory on the path to a much larger effort to shift legal doctrines to the right

A scary read: https://newrepublic.com/article/148358/democrats-prepare-pack-supreme-court

Our contemporary elite polarization means that the center-right Courts of the last four decades will be a thing of the past as soon as Justice Kennedy leaves: The median vote of the Court will be either a conservative like John Roberts or Sam Alito, or a liberal in the mold of Elena Kagan or Ruth Bader Ginsburg. That the Court will be strongly aligned with one political faction during a time of close partisan competition is tinder that could easily fuel a constitutional crisis.

Er... seems odd not to mention the possibility of a Democratic president deliberately selecting an "inoffensive"/"uncontroversial" choice to get through a slim Democratic majority Senate. Someone like, I don't know.... Merrick Garland. Seems odd not to mention that.

oops posted the last bit twice

RUTH BADER GINSBERG IS NOT VERY FAR LEFT

xp Call it anaphora and claim victory

But what if Donald Trump is able to replace Kennedy, and, God forbid, justices Stephen Breyer and/or Ginsburg as well? There is no good outcome in this scenario. Republicans would have a hammerlock on a nine-member Court for decades.

This also assumes that Thomas (who turns 70 next month) and Alito (who just turned 68) both continue to serve for "decades," or that they retire/pass away at a time when Republicans are in control of the nominations process. Which certainly isn't unthinkable, but isn't guaranteed either, so I'm not sure we're quite the guaranteed doomsday track where a delegitimizing court-packing fight is the only way out.

I'm 100% pro court-packing

what's delegitimating about a court-packing fight? It was perfectly legal for FDR to pursue but he got the politics and timing badly bolloxed.

I guess I would argue that "legitimacy" is a political concept, not a legal one.

Anyway, it was the article's claim as I read it - that a reason to be worried about this ostensibly inevitable future court-packing incident would be that it would damage what's left of the court's vague above-the-fray aura etc.

fuck their above-the-fray aura

you'll love their vague above-the-fray aura when 6 conservatives decide that the freedom of contract is a constitutionally guaranteed right and prevent our legislature from doing anything pro-worker

The Supreme Court may soon get to hear (or just ignore) 9th Circuit decisions signed by Federalist Society right-wingers.

https://www.washingtonpost.com/news/morning-mix/wp/2018/05/10/a-trump-judicial-nominee-apologizes-for-controversial-articles-mocking-multiculturalism/?noredirect=on&utm_term=.9b7548825c3e

Ryan W. Bounds, a conservative federal prosecutor in Oregon, faced intense grilling from Democrats during his appearance before the Senate Judiciary Committee. Bounds’s controversial commentaries, written in the Stanford Review in the 1990s, criticized race-focused groups and questioned the value of cultural sensitivity training.

Bounds told senators his rhetoric had been “overheated” back then and offered apologies for the tone of some of his writings.

“I share the concerns of many that the rhetoric I used in debating campus politics back in the early ’90s on Stanford’s campus was often overheated, overbroad,” he said, adding that his views were “not as respectful” as they should have been “about how to best pursue diversity and ensure a multicultural respect on campus.”

Sen. Ted Cruz (R-Tex.) led Senate Republicans in pushing forward with the hearing, despite staunch opposition from both of Oregon’s senators, Ron Wyden and Jeffrey E. Merkley. In a rare move, the hearing proceeded despite both Oregon senators’ refusing to turn in “blue slips”: the pieces of paper used to signal approval of a nominee. When the slips aren’t submitted, it has often been treated as veto power of a nominee.

But not this time.

Republicans are filling appellate judge vacancies across the country that they blocked via blue slip rules and such previously (and Dems playing "by the rules" did themselves). Now we may get more conservative appellate court decisions which will influence what the Supreme Court hears. We're doomed

Brennan will take a seat on the 7th Circuit Court of Appeals in Chicago that has stood open since 2010 amid a bitter political standoff.

He was confirmed 49-46 with only Republican votes, over the objections of Democrat Tammy Baldwin, Wisconsin’s junior senator.

That has typically been enough to sink a nomination in recent years, because senators from both parties have enjoyed an effective veto over the selection of federal judges from their home states, a tradition known as the “blue slip.”

Baldwin’s GOP colleague from Wisconsin, Ron Johnson, used his blue slip power to block one of Democratic President Barack Obama's nominees for the same 7th Circuit seat that his party filled Thursday.
...When Democrats controlled the Senate, Judiciary chair Patrick Leahy of Vermont treated the blue slip as an absolute veto power by home-state senators, even when it made it harder to approve Obama’s nominees because of objections from Republicans in the minority. Leahy would not schedule a confirmation hearing if any senator from the nominee’s home state objected.

https://www.jsonline.com/story/news/politics/2018/05/10/senate-confirms-michael-brennan-u-s-court-appeals/598340002/

New Jersey won a landmark ruling from the Supreme Court Monday that could lead many states to legalize betting on college and professional sports.

The justices ruled 7-2 that a 25-year-old federal law that has effectively prohibited sports betting outside Nevada cannot block states such as New Jersey that want to set up sports books. The ruling could set the stage for other states to expand legalized gambling as a source of government revenue.

Justice Samuel Alito, a New Jersey native, wrote the court's opinion in the case. Justices Ruth Bader Ginsburg and Sonia Sotomayor dissented.

It was a victory for the state's recently departed governor, Chris Christie, who had challenged the Professional and Amateur Sports Protection Act, passed by Congress in 1992 to preserve the integrity of the nation's most popular sports.

It was a defeat for the National Collegiate Athletic Association and the four major professional sports leagues -- baseball, football, basketball and hockey -- that had successfully blocked New Jersey in lower courts.

The court's action could jump-start action in Congress to pass legislation calling for federal regulation of sports betting -- something the sports leagues would prefer over separate rules from state to state.

Congress passed the 1992 law to preserve what lawmakers at the time felt was the integrity of the games. But New Jersey and its allies argued that it ran afoul of the 10th Amendment, which reserves for the states all powers not delegated to the federal government.

Seeing anti-commandeering principles reaffirmed is somewhat reassuring with the current administration being what it is.

This is terrible news for workers in America. The arbitration revolution led by big corporations is taking public justice and making it private, and making it harder for employees to get a fair hearing when they are screwed. https://t.co/RAPh9LMJb8

— Zephyr Teachout (@ZephyrTeachout) May 21, 2018

What's especially ridiculous about these things is that employment nearly everywhere is "at will" rather than contractual. So the employer can force you to sign an entirely one-sided contract that solely prevents you from suing them without giving you anything in return.

fucking

https://www.npr.org/2018/05/21/605012795/supreme-court-decision-delivers-blow-to-workers-rights

In a case involving the rights of tens of millions of private-sector employees, the U.S. Supreme Court, by a 5-4 vote margin, delivered a major blow to workers, ruling for the first time that workers may not band together to challenge violations of federal labor laws.

Writing for the majority, Justice Neil Gorsuch said that the 1925 Federal Arbitration Act trumps the National Labor Relations Act and that employees who sign employment agreements to arbitrate claims must do so on an individual basis — and may not band together to enforce claims of wage and hour violations....

an exceedingly smarmy and disingenuous opener from Gorsuch, just as one might have expected:

"Should employees and employers be allowed to agree
that any disputes between them will be resolved through
one-on-one arbitration? Or should employees always be
permitted to bring their claims in class or collective ac"

Sorry:

Should employees and employers be allowed to agree
that any disputes between them will be resolved through
one-on-one arbitration? Or should employees always be
permitted to bring their claims in class or collective actions,
no matter what they agreed with their employers?

I mean the only solution to this really is to take back congress and amend the statute to clearly allow employee class actions and/or bar arbitration agreements in at-will employment.

Gutting the NLRA, aka the New Deal, is the goal of the conservatives.

how dare you take away the freedom of a poultry worker to agree to one-to-one arbitration with their employer

take back congress and the presidency and then queue up some assassinations

surely the right of employees to agree to completely lopsided negotiations as a condition of employment should form the cornerstone of labor relations moving forward

this gorsuch guy is SO SMART what BRAINS on this guy

Or should employees always be permitted to bring their claims in class or collective actions, no matter what they agreed with their employers?

that "always," what a lovely touch, like one of Virginia Woolf's semicolons.

It's fairly pukeworthy how often I hear a fellow lawyer defend or try to mitigate the Gorsuch appointment, an obvious disaster for workers and ordinary people but he's "smart" and "fair-minded" (and law firms will probably never make their lawyers sign arbitration agreements so you ain't got shit to worry about).

class sympathy really trumps politics is what it boils down to

Ginsburg's dissent is five pages longer than the majority's opinion. And Gorsuch spends time in his opinion to respond point by point to the minority's arguments.

I'm sure his responses are smarmy

I haven't read the opinion yet. It hardly matters. When you see a 5-4 opinion breaking exactly along party lines, each side claiming they have the correct statutory interpretation, you know what's really going on. I mean Gorsuch's opening line basically admits that all the statutory interpretation is just a smokescreen. He just thinks employers should be able to make employees "agree" to whatever, regardless of what any statute says.

I mean I don't give a fuck about the blazing intellectual combat taking place, you either recognize that employers control the means of production and thus have massively unequal leverage or you accept the false construct of the employer and employee as contracting equals.

^ otm

hi Rufus!

https://api.oyez.org/sites/default/files/images/people/rufus_peckham/rufus_peckham.jpg

Or should employees always be permitted to bring their claims in class or collective actions, no matter what they agreed with their employers?

that "always," what a lovely touch, like one of Virginia Woolf's semicolons.

― morning wood truancy (Alfred, Lord Sotosyn), Monday, May 21, 2018 11:58 AM (nine minutes ago) Bookmark Flag Post Permalink

You’re giving him too much credit. It’s sounds like Carrie Bradshaw

So Neal K. Katyal, who was an acting solicitor general in the Obama administration, is a law professor at Georgetown and a partner at Hogan Lovells, wrote the cert petition on behalf of the employer asking the Supreme Court to weaken labor law in this case, and the NY Times let him write an op-ed back in 2017 entitled "Why Liberals Should back Neil Gorsuch.".

21st-century libs also hate workers, apparently

Does Neal K. Katyal claim to be a liberal? Seems like a highly doubtful claim to me.

dude litigated the travel ban = liberal hero

Judging an attorney's principles by examining the cases they've argued seems like a highly doubtful methodology to me.

His Twitter labels him an "extremist centrist," which is nice ass-covering.

wiki:

Katyal was critical of the Guantanamo Bay detention camp. While teaching at Georgetown University Law Center for two decades, Katyal was lead counsel for the Guantanamo Bay detainees in the Supreme Court case Hamdan v. Rumsfeld (2006), which held that Guantanamo military commissions set up by the George W. Bush administration to try detainees "violate both the UCMJ and the four Geneva Conventions."

I know this is an uncomfortable conversation, but progressives must understand+confront role that Big Law—including heroes who’ve done great work serving in Dem admins—has played in undermining legal rights of vulnerable workers and consumers, esp through attack on class actions https://t.co/i9fLwvUcOm

— Brian Highsmith (@bd_highsmith) May 21, 2018

Um, the job of biglaw is to serve capital, what the fuck does anyone think it is?