U.S. Supreme Court: Post-Ginsburg Edition

SCOTUS ruled 7-2 against Andy Warhol in a fair-use case regarding a photo of Prince:
https://www.nytimes.com/2023/05/18/us/supreme-court-warhol-copyright.html

Interesting to see which way the justices fell in this one: Sotomayor wrote the opinion and Kagan the dissent. And the lone justice who joined the dissent was Roberts.

Currently reading Kagan's dissent, which quotes both Jonathan Lethem and Nick Cave.

I was pretty surprised and put off by the LGM take on this

https://www.lawyersgunsmoneyblog.com/2023/05/warhol-foundation-v-goldsmith

Sort of a funny take considering the name of that blog.

That LGM writer often trolls readers.

Irony about the blog title aside, what about the LGM take surprised you? From a Marxist perspective the concept of "fine art" can be classic mystification and the "transformative" angle of fair use has been criticized as a license to steal.

Here's a good primer on transformative fair use

https://fairuse.stanford.edu/overview/fair-use/four-factors/

I kind of agree with the LGM take on this--Warhol is not exactly "transforming" the art he creates when he uses, say a Goldsmith photo

Im still angry about RBG. Know when to quit FFS.

Justice Gorsuch calls Covid safety measures “the greatest peacetime intrusions on civil liberties in American history.”

White wealth privilege is ignoring 400 years of Native genocide, 265 years of Black slavery, & 99 years of Jim Crow—but lamenting 1 year of PTO during COVID.😑 pic.twitter.com/MrwMribfGX

— Qasim Rashid, Esq. (@QasimRashid) May 19, 2023

Incredibly stupid (not surprising) that these would-be historians on the bench don't know about the history of pandemic responses going back 200 years in this country. Isn't Gorsuch though passionately pro Native American in his rulings? Maybe we could frame every case from now on in some way with Native American Rights.

From an article cited by LGM:

Perhaps Justice Gorsuch didn’t directly cite the complaint in the case itself because it is, to use the technical legal term, batshit rightwing-nut crazy. It repeatedly refers to the Biden administration as “the Left.” In addition to complaining about the supposed pressure campaign to suppress anti-vax disinformation, it also complains about supposed suppression of (false) claims by Donald Trump and his allies about voter fraud. And it’s especially adamant about supposed suppression of anti-mask speech. . .

Near the end of Justice Gorsuch’s statement, he acknowledges that “decisive executive action is sometimes necessary and appropriate.” Yet nowhere in that statement does he say–and he apparently doesn’t think–that a pandemic caused by a novel virus that ended up killing over a million Americans and that sickened millions more was the sort of crisis calling for such decisive executive action. He refers to Americans’ overreactions to a “perceived threat,” implying (even if not coming right out and saying) that he thinks the perception with respect to COVID was inaccurate from the start. . . .

Justice Gorsuch’s statement terms the collection of orders comprising the US COVID response “the greatest intrusions on civil liberties in the peacetime history of this country.” That assertion echoes Justice Alito’s November 2020 speech at the Federalist Society national convention in which he called COVID-related government actions “previously unimaginable restrictions on individual liberty,” adding: “We have never before seen restrictions as severe, extensive and prolonged as those experienced for most of 2020.”

I guess it depends on who “We” are. This is a country in which millions of human beings were lawfully enslaved their entire lives–including during peacetime. And while I do not deny that the COVID restrictions were indeed a very serious intrusion on liberty, it’s a little hard to take seriously paeans to liberty offered by Justices who enthusiastically nullified a nearly-fifty-year-old precedent recognizing the freedom not to be forced to endure the bodily burdens of pregnancy and birth.

Yeah, that's what I can't get over: The COVID responses were public health measures carried out for the express purpose of combating a deadly global pandemic. The pandemic wasn't a pretext, it was the whole point. You can argue about the effectiveness of various measures put in place while our understanding of the virus was still limited, but I get the impression that some people would rather have not had any response at all, which is bonkers to me.

I kind of agree with the LGM take on this--Warhol is not exactly "transforming" the art he creates when he uses, say a Goldsmith photo

― a (waterface), Monday, May 22, 2023 5:14 AM

More than that though, "transformative use" is not in the Copyright Act at all. The "transformative" factor is not needed if the statutory factors are applied correctly. It became a freestanding exception that threatened to negate the fair use factors. The issue I would have with the Warhol work is it is in no way a commentary on Lynn Goldsmith's original photo, so the borrowing was not necessary. And I say this as a fan of Warhol. (I don't agree with the LGM take on Warhol's artistic merit, but I gather I'm not supposed to.)

DeSantis warned of a jurist replacement in the mold of John Roberts, a conservative who is perceived by many to be a centrist.

“If you replace a Clarence Thomas with somebody like a Roberts or somebody like that, then you’re gonna actually see the court move to the left, and you can’t do that,” he said.

DeSantis suggested that Roberts and liberal Sonia Sotomayor might also retire in the near future.

“So it is possible that in those eight years, we’d have the opportunity to fortify Justices Alito and Thomas, as well as actually make improvements with those others. And if you were able to do that, you would have a 7 to 2 conservative majority on the Supreme Court that would last a quarter-century,” the governor said to cheers.

Roberts, that fuckin' lib

Harlan Crow’s lawyer says he doesn’t have to answer Judiciary Committee questions re Justice Thomas

For a private citizen to assert that separation of powers puts them beyond the reach of Congressional inquiry is frankly bizarre. Specific justices are not empowered to cloak their friends & acquaintances w/the separation of powers protections the justices might hold. https://t.co/pqQnarBwIh

— Sherrilyn Ifill (@SIfill_) May 23, 2023

Given who will eventually decide this, he’s gotta take a shot

Bad clean water decision today

Kagan's opinion in Sackett calls back to WV v. EPA last term to ring the alarm about this Supreme Court overriding Congress' environmental policy choices. https://t.co/16oWmDsns6 pic.twitter.com/EDAhDAgkQ8

— Mark Joseph Stern (@mjs_DC) May 25, 2023

Alito I think wrote a majority one

lemme guess. alito'd opinion cited states' rights.

It cited water as a privilege

much much worse

wet privilege

it really sucks that all the radical left punk bands were right about everything

When Kavenaugh thinks Alito has described something wrong, you know there’s a problem:

.” Justice Brett Kavanaugh wrote in the concurring opinion on behalf of himself and the three liberal justices, that the “continuous surface connection” requirements advocated by the majority “departs from the statutory text, from 45 years of consistent agency practice, and from this court’s precedents,” and that the new test will have “significant repercussions for water quality and flood control throughout the United States.” The SCOTUS ruling reverses the decision of the 9th Circuit Court of Appeals, which sided with the EPA.

Alito isn't just intellectually dishonest, but transparently and habitually so whenever it serves his purposes. Maybe Kavanaugh has noticed.

This implies that he wasn't always fully aware and participating in the exact same dishonesty the entire time along with the other conservative justices.

Just like with the FDR court majority of the late 1930s and 1940s there's going to be a split among political blocs. This isn't unusual.

Roberts = "swing" vote
Alito = GOP party hack
Thomas = "It's not in the Constitution I think exists? No? Out it goes."
Gorsuch = pseudo-libertarian streak
Kavanaugh = "I've known a few gay people and women who've had abortions"
Barrett = "Where do I sign?"

all of them= prime candidates for MISTER CHOPPY

Exactly. You want to argue that Alito is extra special bad? Fine. But the rest of them aren't babes in the woods, they know exactly what they are doing.

They have an extra vote to give, so they can throw it to one of them as a counter vote to build plausible deniability. Remember that one time Kavanaugh voted against the majority? Guess they really are principled after all!

In her first solo dissent, Jackson wrote that the courts had “no business delving into this particular labor dispute at this time.”https://t.co/gDqGo25KFg

— The Hill (@thehill) June 1, 2023

[T]he majority also misapplies the Board’s cases in a manner that threatens to impede both the Board’s uniform development of labor law and erode the right to strike,” Jackson dissented.

The case arose after the union directed its drivers to go on strike on a morning the company was mixing concrete, loading it onto trucks and making deliveries. The concrete mixed that day was ruined, and Glacier sued the union for damages in state court.

Under a 1959 Supreme Court precedent, San Diego Building Trades Council v. Garmon, the National Labor Relations Act (NLRA), a federal law that governs strikes and collective bargaining, preempts state law when the two arguably conflict.

After the union got the lawsuit tossed at the Washington Supreme Court under Garmon, Glacier Northwest appealed to the nation’s highest court.

In a majority opinion authored by conservative Justice Amy Coney Barrett and joined by four of her colleagues, the court ruled that the NLRA did not preempt the lawsuit, because the strike did not take reasonable precautions to protect the company’s property from foreseeable, imminent danger.

https://thehill.com/regulation/court-battles/4030151-ketanji-brown-jackson-issues-solo-dissent-in-ruling-against-teamsters-strike/

Justice Jackson: "Workers are not indentured servants, bound to continue laboring until any planned work stoppage would be as painless as possible for their master. They are employees whose collective and peaceful decision to withhold their labor is protected..." https://t.co/ahEvLbkO0M pic.twitter.com/hzmXlCbZJR

— Jessica Mason (@jessicafmason) June 1, 2023

In the court’s orders list on Tuesday, Alito noted his recusal from BG Gulf Coast and Phillips 66 v. Sabine-Neches Navigation District—a case about two energy companies shirking their obligation to help fund improvement of a waterway that they use for shipping. (The court declined to take up the case, leaving in place a lower court decision against the companies.) But the justice did not explain his reason for recusing, one of Roberts’ promised “practices.” To obtain that information, you must dig through his financial disclosures, which reveal that he holds up to $50,000 of stock in Phillips 66, one of the parties. Alito is one of two sitting justices who still holds individual stocks (as opposed to conflict-free assets like mutual funds). The only other sitting justice who maintains investments in individual stock is Roberts himself.

https://slate.com/news-and-politics/2023/05/alito-violates-supreme-court-ethics-rules.html

Uh:

In short, Rehnquist consistently contended—and the current Supreme Court majority is likely to contend—that the Reconstruction Amendments were drafted not to protect disadvantaged groups from racially biased treatment at the hands of the government but rather to prohibit the government from using race-conscious measures to ever remediate inequality.

We will learn in the coming weeks whether this vision of the Reconstruction Amendments will lead to the further erosion of rights for some of the most historically marginalized Americans. If the court fully embraces Rehnquist’s vision, it will be a posthumous victory for him as the court concomitantly crushes minority rights and waxes poetic about its lofty and ongoing commitment to racial equalit

Ugh. A long ugly history of racism at the court that they seek to justify with faux originalism. A bunch of decisions I think are scheduled to come out next week. We may likely see an Alito, Roberts, etc decision that reflects this twisted take

The thing is, that position is demonstrably wrong, both historically and textually.

The Supreme Court denies a stay of execution to Michael Tisius.

Six of the jurors who sentenced Tisius to death have come forward to support a grant of clemency. https://t.co/Osb5oIB0w2 pic.twitter.com/FQlErrV6cz

— Mark Joseph Stern (@mjs_DC) June 5, 2023

The Supreme Court's first opinion of the day is in Talevski. Justice Jackson's 7–2 opinion for the court firmly rejects a red state assault on Medicaid. This is very much a bullet dodged. https://t.co/m1Is9bEGC5

Background from @imillhiser: https://t.co/SCiHIZZQRQ

— Mark Joseph Stern (@mjs_DC) June 8, 2023

Need to read more to understand the details, but any decision that upholds the Voting Rights Act is a good one I guess.

WHOA! The Supreme Court's final decision of the day is a 5–4 ruling that AFFIRMS the Voting Rights Act's protection against racial vote dilution! Roberts and Kavanaugh join the liberals. This is a HUGE surprise and a major voting rights victory. https://t.co/qMN96f0FXr

— Mark Joseph Stern (@mjs_DC) June 8, 2023

conservative justices feeling that pressure?

And in non-opinion news Thomas and Alito get 90 day extensions on financial form filings

https://www.nytimes.com/2023/06/07/us/supreme-court-thomas-alito-financial-disclosures.html?smid=nytcore-ios-share&referringSource=articleShare

Kavanaugh went WOKE pic.twitter.com/yVaPM2og7v

— felix (@Leftist_Kiwi) June 8, 2023

The inevitable "not so fast"

Some initial thoughts on Allen v. Milligan.

Media is trumpeting this as a "victory" for the Voting Rights Act. And it is. And I don't want to be a turd in the punchbowl... but this is pretty weak sauce from this Court.

— Melissa Murray (@ProfMMurray on Spoutible 🐳 ) (@ProfMMurray) June 8, 2023

Kavanaugh after Republicans went to war against Bud Light pic.twitter.com/4RqaJe3K6B

— ettingermentum (@ettingermentum) June 8, 2023

hahahaha

Ha!