U.S. Supreme Court: Post-Ginsburg Edition

this is the exact area where i think Kagan's dissent could clarify things for you. the majority opinion is in effect a major expansion of what counts as a "major question." previously this was described as requiring that the agency went way outside its normal area of operations, and/or would the regulation amount to some enormous change to the structure of the economy --- for example the FDA outlawing cigarettes as a poisonous drug, which (whatever the merits of the idea) is clearly not what Congress empowered the FDA to do, and would also shutter an industry at one blow.

the Clean Power plan doesn't rise to either of these - Congress clearly empowered the EPA to regulate power plant emissions, and the plan's impact would not be remotely earthshaking. as Kagan points out, the plan was in fact blocked by the Trump administration and then the power industry exceeded its goals anyway. so now "major questions" means "regulates something i wish they wouldn't."

Kagan is good on the administrative state and is the libs' best explainer, yeah.

What is even wilder about this case is that it was not an actual case or controversy. The Court intentionally took a matter that was not active to further its agenda of dismantling the regulatory state.

Those Koch dollars are bearing rich fruit.

some are suggesting that the deeper purpose, since the CPP was already kaputt, was to establish that if a regulatory agency, EPA or otherise, drifts into regulating things that 6 conservative justices don't like, they can now declare that the agency is addressing a "big question" (defined as "i know it when my racist piece of shit ass sees it"), they can unilaterally shut it down

that could be true, although I wonder why they wouldn't just do that through a case actually challenging something they want to shut down, i.e. why do that through a challenge to something not active when they could just do it through a challenge to something active? I guess we will find out soon enough anyway.

That seems to be what the decision means. The epa is empowered by congress to protect the environment and regulating emissions is part of that. Their operation is overseen by the executive. The rationale of the majority opinion here is laughable.

I think it's a flex on the part of the Court. Standing is a basic requirement of federal court jurisdiction. They're expanding the rules to suit their agenda.

Plus, as I said, this is Koch money at work. This question is of paramount importance to the fossil fuel industry.

Laughable and yet We. Would. CRY. xp

that could be true, although I wonder why they wouldn't just do that through a case actually challenging something they want to shut down, i.e. why do that through a challenge to something not active when they could just do it through a challenge to something active? I guess we will find out soon enough anyway.

The majority sees that the President and the slim majority in the Senate aren’t passing anything now, and they see that lower courts have held up regs , so they chose to do it this way, because they don’t want to wait. They arrogantly believe they know what’s allowed so why not to them do it this way.

cool

EXCLUSIVE: Supreme Court justices — Clarence Thomas, Samuel Alito, and the late Antonin Scalia — have prayed together with evangelical leaders whose bosses were bringing cases and arguments before the high court. https://t.co/J4OiaawsX8

— Rolling Stone (@RollingStone) July 6, 2022

"raising questions about impartiality"

Alito has ordered new robes for next year's term

https://www.prospecthillco.com/wp-content/uploads/2017/02/4c19511e99858164f4e6f01d6eb73c4bdf486473-1.jpg

Looks like Gorsuch's stunt double.

just found out the new neighbor across the street is in the federalist society

i assume catholic university just pumps these dudes out

Heez! You live in Brookland?

I still cannot believe that one of the art mentors of my youth did a hard right turn and is now a senior editor at the Federalist. Total bummer.

I am hardly Mr. Sunshine-and-Lollipops when it comes to my attitude toward people in general, but it is hard for me to fathom the depth of contempt for humankind required to embrace the Federalist Society's ideology. One can only wish they'd turn that contempt exclusively upon themselves and leave the rest of us alone.

No but close by just over the Maryland line! I get my weed in brookland

My wife did some internet sleuthing bc ups dropped their j crew box on our porch lol. This is the type of dude who always has dockers on and a button down shirt with sleeves rolled up

When I was in law school (mid 90s), the school's chapter of the Federalist Society was pretty much a frat--literally. I don't think there was a single female student in their ranks, at least not one who would admit it.

Protestors at Morton's Steakhouse protested Brett Kavanaugh's presence.

Apparently, the Justice had to leave by the back door without dessert. The horror!

Waiter shoulda put feces in his potatoes

“Our special potatoes for you, Sir”

Poor guy. He left before his soufflé because he decided half the country should risk death if they have an ectopic pregnancy within the wrong state lines. It’s all very unfair to him.

The least they could do is let him eat cake 🍰 https://t.co/5Y3b1TIW1N

— Alexandria Ocasio-Cortez (@AOC) July 8, 2022

https://podcasts.apple.com/us/podcast/the-daily/id1200361736?i=1000569124695

While this may seem like the last person whose voice you want to hear right now, this was actually a fascinating look at how the right used a very disciplined incremental legal strategy to get to today (and will continue to do so), which made me start thinking about what kind of incremental strategies could be used for the better.

I know this isn't going to seem that meaningful to most people btw, but I was talking to my extremely centrist boss (like the kind of guy who will talk about the loony left, mostly votes dem but might have gone for a "moderate" republican), and he was 100% outspokenly in favor of expanding the Supreme Court. Limited data point, but I found that pretty interesting, maybe encouraging.

Also, I have increasingly been thinking this is something we should be thinking of as a long-term goal, that should just get persistently messaged as a set up for if/when democrats have the power and will to do it even if they don't today. And people need to stop calling it "court packing" which sounds bad and devious.

I haven’t heard anyone call it court packing since the 1930s but I’ll let FDR know.

Did you consider googling "court packing" before posting that?

what have they been calling it since the '30s? Court growth patterns?

https://twitter.com/search?q=%23packthecourt&src=typed_query

All I’ve heard lately (i.e last several years) is “expand the court” except when referencing the historical attempt to do the same.

I'd say overloading the Court with religious fanatics counts as packing.

It makes no sense to have a system where someone who is president for four years can set the court majority for 20+ years.

i maintain that if Biden ever were to pick up this torch it'd be called "court reform" or something like that. might not even be a bad idea, idk.

hell, do an ILX search for "court packing" and you'll find many a-usage of said term in the last year alone

Court leveling. Court detonating. Court right-sizing. Court optimizing. All the feels.

courts correction

V.I. Warshawski

not germane to the conversation I just felt like saying that

Has the need for expertise in the face of the growing specialization of knowledge ever been used to counter the major questions doctrine? Has the Supreme Court ever limited its own power as it has for the other branches of government?

https://www.reuters.com/legal/government/us-supreme-court-justice-alito-mocks-foreign-critics-abortion-ruling-2022-07-28/

Alito at a conference on religious liberty in Rome hosted by the University of Notre Dame Law School(Video of the speech was posted online on Thursday by Notre Dame). In his first public remarks since the decision, which has led to various conservative U.S. states imposing abortion bans, Alito dismissed criticism of the ruling, which has come from the likes of British Prime Minister Boris Johnson, French President Emmanuel Macron and Canadian Prime Minister Justin Trudeau.

Has the need for expertise in the face of the growing specialization of knowledge ever been used to counter the major questions doctrine? Has the Supreme Court ever limited its own power as it has for the other branches of government?

― youn, Saturday, 16 July 2022 15:05 (two weeks ago) link

Dobbs was a decision limiting the power of the Supreme Court and declining to limit the power of the states.

Conservatives don't really seem to care about a "need for expertise." The "major questions" doctrine was created recently to counter the Chevron case that said to defer to agency expertise interpretations when in doubt about the meaning of a statute.

Supreme Court Justice Clarence Thomas has told George Washington University that he won't be returning to teach at its law school this fall. The decision followed student protests over the Supreme Court's vote to overturn Roe v. Wade.

Thomas told the school he will not be available to give a constitutional law seminar which he was expected to co-teach. He had been teaching the course at the Washington, D.C., law school since 2011.

https://www.npr.org/2022/07/28/1114285261/clarence-thomas-george-washington-university-law

The usual idiots (GW Law prof Jonathan Turley, W Post columnist Kathleen Parker) are moaning that the a street mob had Thomas cancelled (even though GW University said they wanted him to stay despite the petition against him)

damn right the street mob is cancelling clarence thomas. they’re coming for you next turley and parker.

Conservatives don't really seem to care about a "need for expertise."

Actively hostile to it in any context iirc.

Not a new development, either. (He says, posting from the state that gave us the Scopes trial 97 years ago.)

https://www.thenation.com/article/politics/sonia-sotomayor-liberal-justice/

Some excerpts from interesting article on Sotomayor

Sotomayor’s willingness to expose what the court is doing has made her the most important liberal on the bench in recent years. Other liberals have seemed more interested in finding common ground and compromise with conservative justices or voting strategically to mitigate even greater harm, and there is value in those approaches. But Sotomayor is the one who can be relied on to point out the legal and moral failures of her conservative colleagues. She’s the one who puts progressive outrage into words.

...She is quotable by design. The New York University law professor Melissa Murray, a former clerk for Sotomayor, described her as relentless when it came to pruning her opinions of unhelpful legal jargon. “Her principle concern, beyond getting it right, was that opinions were explained in a way ordinary people will understand.”

....Ginsburg served on the Supreme Court for 27 years yet managed to hire only one African American clerk in all that time. It was a blind spot in her thinking, a demerit on her legacy, and it is a mistake Sotomayor has not repeated.

Sotomayor’s clerkship tree is large and diverse. David Lat, a longtime chronicler of Supreme Court clerks and the judicial process, told me, “Since joining the court in 2009, Justice Sotomayor has been the leader on the court in hiring diverse law clerks…. By my rough calculations, around a third of her clerks have been people of color—about twice the historical percentage for Supreme Court clerks generally.