U.S. Supreme Court: Post-Ginsburg Edition

The most radical argument was the court's apparent acceptance of the plaintiff's interpretation of language in the constitution stating Congress is granted "all" legislative power as meaning that the SEC is unconstitutionally creating law by enforcing regulations not passed by Congress. Requiring Congress to explicitly pass all the regulations directly, as legislation, would invalidate every current regulation and replace them with chaos.

― more difficult than I look (Aimless), Wednesday, 18 May 2022 22:27 (yesterday) link

I read the opinion and this is not what it says at all.

then there's nothing to worry about, I guess

levine breaks it down well afaict

https://archive.ph/5TuRV

The conservative threat to regulatory agencies is very real, I just don't see how this particular decision really makes any difference. It removes the power of the SEC to decide at will when to prosecute before an ALJ vs a jury trial, which right was only granted to the SEC in 2010, and it seems like there's a pretty good argument that this power wasn't delegated properly. It doesn't alter the SEC or any other agency's ability to bring enforcement actions.
I don't even think it alters the ability of other agencies to enforce via ALJs/administrative tribunals.

I don't know what "exhaustive jurisprudence" you're referring to that it "overthrows," Aimless. I don't know what "novel interpretation of the constitution" is present in the opinion either. Can you point to what you're referring to?

I mean it's not lost on me that conservative legal strategy is often incremental, I'm just not sure I even see an incremental victory here.

I don't know what "novel interpretation of the constitution" is present in the opinion either.

From reading caek's link I have learned that this novel interpretation is called the nondelegation doctrine and it has been raised often in the past as an objection to federal regulatory regimes and consistently rejected for about the past 85 years.

that isn't novel but whatever

i think it will have implications for other agencies. not the jury trial thing but the other two. regarding jury trials i am confused about 2010 because i don't understand the difference between civil penalties for securities fraud pre- and post-dodd-frank. didn't they exist?

yeah even I'm not sure about that and this is not super far away from my area of practice. I'm p sure there were always civil penalties, but I think Dodd Frank may have just given the SEC the right to have its own ALJs hear the cases rather than juries. And tbh that doesn't seem like the greatest idea to me.

I can think of plenty of nefarious ways that sort of delegation could be used by a conservative administration too.

The opinion didn't require citation of the nondelegation doctrine to find in favor of the plaintiff. The constitutional right to jury trial was more than sufficient grounds and wouldn't raise any alarms.

they didn't find in favor of "the plaintiff"

and my use of the wrong terminology matters in what way to my point?

The basis on which they found improper delegation strikes me as exceedingly narrow and relatively easy to remedy if Congress actually wanted to. Certainly I get that the fact that the doctrine came up at all, even in the most tiny way, might raise some eyebrows. So far I'm not seeing how it's the narrow end of a wedge or anything, but that doesn't mean it isn't, there are a lot of clever motherfuckers in the conservative legal sphere.

Aimless you don’t have to be an expert on everything

easy to remedy if Congress actually wanted to

You know that Manchin and Sinema will agree? It's not easy for this Congress

https://www.vox.com/2022/5/19/23130569/jarkesy-fifth-circuit-sec

Man Alive, here's another article suggesting this is a bigger deal than you think

The US Supreme Court agreed May 16 to take a look at a narrower case out of the Fifth Circuit regarding which courts have jurisdiction to hear challenges to the agency’s administrative law judges. The CPA in that case also challenged the in-house judges’ protections against removal.

...Other circuit courts ruled similarly on the jurisdiction question until the Fifth Circuit’s December 2021 en banc opinion in CPA Michelle Cochran’s case. The full court, in a 9-7 decision, determined federal securities laws don’t actually strip lower courts of jurisdiction to hear constitutional challenges like hers and Jarkesy’s.

The SEC pointed to the D.C. Circuit’s Jarkesy opinion—along with similar opinions in the Second, Fourth, Seventh, and Eleventh circuits—as evidence of a circuit split when it petitioned the Supreme Court for review in Cochran.

https://news.bloomberglaw.com/securities-law/sec-in-house-hearing-violates-jury-trial-right-fifth-cir-says

Milheiser's explanation of the overall arc of this situation maps very well my ad law/con law education.

"Emasculating the regulatory state has been the GOP goal since Reagan" maps perfectly to my observations (tho tbh, also my priors). I said an almost this exact sentence to my accomplished corporate lawyer brother-in-law in about 2004, got a grim shrug back. As with Roe, the situation for execution is v good.

i am beginning to think about this a little bit more clearly bc i think it actually affects something i am working on irl. one thing that is dumb about this is that in jarkesy they opined about the ALJ removal issue but did not rely on it to vacate the judgment. they said they didn't know what the remedy should be if that was the only issue. which is also weird because if the ruling is that the judgment is vacated because it should have been filed in federal district court there is no issue with the ALJ! it shouldn't have even been part of the opinion. i don't expect the supreme court is going to care about that.

Ha, that makes it dicta. Obiter dictum? Whatever it’s called. I should read it to understand better.

Random aside: Orbiter Dicta will be my law nerds spacerock band name.

Opening for Stare Decisis soon.

👍

Starry Decisis

i am beginning to think about this a little bit more clearly bc i think it actually affects something i am working on irl. one thing that is dumb about this is that in jarkesy they opined about the ALJ removal issue but did not rely on it to vacate the judgment. they said they didn't know what the remedy should be if that was the only issue. which is also weird because if the ruling is that the judgment is vacated because it should have been filed in federal district court there is no issue with the ALJ! it shouldn't have even been part of the opinion. i don't expect the supreme court is going to care about that.

― towards fungal computer (harbl), Friday, May 20, 2022 8:56 AM (three hours ago) bookmarkflaglink

This confused me -- was it remanded *to the ALJ* for proceedings consistent with the finding that it shouldn't have been before the ALJ? I didn't understand the remand in the opinion.

the judgment is entered by the SEC so it goes back to them, as far as i understand. not to the ALJ, they basically manage the litigation and fact-finding and report to the SEC with a recommendation.

Good read:

While Clarence Thomas badmouths the press and the libs, more dirt keeps coming out about his ethics

Good morning. So Ginny Thomas was paid for many years to lobby against the ACA while Clarence Thomas on several occasions voted to overturn the ACA or weaken it substantially. AND, Thomas failed to report her income from that lobbying for years. That’s Clarence Thomas.

— Eric Segall (@espinsegall) May 22, 2022

there are going to be some big consequences for clarence thomas after this bombshell

the corruption is so brazen it's unbelievable, and they know they are above the law and the only possible institution that can hold them to accountability is crumbling itself

That's a great tweet, really affirming of my low opinion of all involved, but it would be nice if it linked to some published reporting backing it up.

Very little is known about her company, Liberty Consulting, which is listed as an asset on her husband’s Supreme Court disclosures. CNBC was able to find some of her conservative-leaning clients by cross-checking Virginia business records, tax forms, Federal Election Commission filings, personal financial disclosure documents and through interviews with people familiar with her work. Even so, watchdogs say such documents may not entirely reveal who she’s represented and whether those groups have ties to any cases before the court, raising increasing calls for more transparency.

https://www.cnbc.com/2022/04/05/inside-the-consulting-firm-run-by-ginni-thomas-wife-of-supreme-court-justice-clarence-thomas.html

from 2011

https://www.npr.org/2011/11/15/142339329/the-nation-clarence-thomas-vs-legal-ethics

from that article from back in 2011

This is a good time to recall that seventy-four members of Congress have signed a letter asking Justice Clarence Thomas to recuse himself from any ruling on the Affordable Care Act because of his wife's work as a conservative activist and lobbyist, where she specifically agitated for the repeal of "Obamacare." The recusal effort was spearheaded by Representative Anthony Weiner, and his resignation in June slowed the momentum around this issue on Capitol Hill—but there's still ample evidence for concern.

https://www.npr.org/2011/11/15/142339329/the-nation-clarence-thomas-vs-legal-ethics

what makes it so brazen is that the justices surely understand that how important it is to not even give _the appearance_ of a conflict of interest. fuck, that is something every manager in the world, every person who makes decisions or is in charge of certain things, should know. and does know. of course he knows better. you have to bend upside-down and backward and twist all of his actions into a dense knot to begin to come up with a version where his actions are ok

and yet

*another decade passes*

god, lol at anthony "my life focus is basically my" weiner being the one to lead the charge on conflict of interest, great move democrats. i'm sure none of them knew that weiner was a gigantic piece of anti-ethical shit

ha looking back at the House in 2011, nearly everyone in GOP leadership has been forced out, lost re-election or retired (McCarthy a notable exception) whereas the Democrats' leadership is basically the same

The other day I remembered....Tom DeLay.

Another Monday with a bad 6 to 3 decision. A death penalty one

the court said the federal Antiterrorism and Effective Death Penalty Act bars federal courts from developing new evidence related to the ineffectiveness of the postconviction [state level] lawyers. Sotomayor and an attorney for Jones and Lee said the decision takes out the “guts” of the earlier ruling.

In Jones’ case a federal court judge ordered him released or retried after finding lawyers failed first by not presenting evidence he was innocent and then, after his appeals failed, neglecting to argue his lawyer was ineffective. The Supreme Court’s decision reinstates his conviction, his lawyers said.

https://ktar.com/story/5071945/supreme-court-rules-against-2-arizona-death-row-inmates-in-right-to-counsel-case/

Scotus Blog on the same death penalty case --

Two men on Arizona’s death row are not entitled to present new evidence in federal court to support their arguments that their trial lawyers bungled their cases, the Supreme Court ruled Monday in a 6-3 decision.

The question in Shinn v. Ramirez and Jones was whether state prisoners challenging their convictions and sentences in federal court could develop evidence in the federal proceeding to support claims that their state trial lawyers were ineffective to such a degree that the prisoners’ Sixth Amendment right to counsel was compromised. The case pitted the language of the Anti-Terrorism and Effective Death Penalty Act of 1996, which generally prohibits federal courts from holding an evidentiary hearing on these kinds of claims if the prisoner “has failed to develop the factual basis of a claim in State court proceedings,” against a 2012 Supreme Court decision, Martinez v. Ryan, which held that prisoners can raise a claim of ineffective assistance of counsel for the first time in federal court.

In an opinion by Justice Clarence Thomas, the court sided with Arizona.

“[O]nly rarely may a federal habeas court hear a claim or consider evidence that a prisoner did not previously present to the state courts in compliance with state procedural rules,” Thomas wrote. And in this case, he concluded, Section 2254(e)(2) forecloses the prisoners’ efforts to introduce new evidence outside the state-court record.

https://www.scotusblog.com/2022/05/divided-court-restricts-prisoners-ability-to-pursue-claims-that-their-lawyers-were-incompetent/

Clarence Thomas said that allowing a federal hearing on ineffective counsel and why the counsel were ineffective in introducing evidence of innocence here would "be an affront to the State and its citizens who returned a verdict of guilt after considering the evidence before them. Federal courts, years later, lack the competence and authority to relitigate a State's criminal case."

Here is Clarence Thomas, writing for 6 of 9 Supreme Court justices, explaining that the prospect of a federal court hearing evidence that a person on death row might be actually innocent is an "affront to the State" and its sacred right to kill people pic.twitter.com/LjpX0mvAx7

— Jay Willis (@jaywillis) May 23, 2022

I’ll add here that Congress and the Biden administration could rectify this tomorrow. They could pass a bill to repeal or significantly reform AEDPA. They won’t, because the law is immensely complicated, and the GOP will demagogue the hell out of it. But they could.

— Radley Balko (@radleybalko) May 23, 2022

Can we all just use our collective minds to concentrate really hard and imagine Clarence Thomas dying in his sleep?

If that works we can move onto Alito next.

Christ

Dear Christ: I like your concept for the bumper sticker, but it is too long

—Bob Marley

Be Non-Violent, But Pray For Your Enemies to Die in Their Sleep

--Einstein

this was from his Sermon on the Mount, jfc do none of you read the Bible

next you'll tell me you are ignorant of Jesus's destruction of the temple due to not accepting Bitcoin

"He drove them all out of the temple, and poured slurp juices on the sheep, and the oxen; and drained the changers' wallets, and overthrew the tables; And said unto them that sold apes, Take these things hence; make not my Father's house an house of poorly-made art."
— John 2:15–16

I still can’t get over “slurp juice”

I would settle for debilitating strokes

Nah they'd Weekend At Bernie's that fucker, stat