U.S. Supreme Court: Post-Ginsburg Edition

I'm not saying that the Supreme Court dropped this nightmarish, horribly cruel abortion order at the same time that they dropped the Trump order so no one would notice. But SCOTUS also dropped a nightmarish, horribly cruel abortion order tonight.

https://x.com/imillhiser/status/1743417797588254884?s=20

Heard part of a NPR reporter's take on the SCOTUS arguments this morning on a case that the Kochs are involved in and hope to use it to get rid of Chevron deference to Federal agencies. Reporter said Gorsuch, Alito, Thomas, ad Kavenaugh sounded eager to overturn Chevron, Roberts was quieter, and Coney Barrett seemed worried the court caseload would increase dramatically if they get rid of Chevron,

https://thehill.com/regulation/court-battles/4414026-supreme-court-chevron-arguments/

It seems like a very esoteric case that could have huge ramifications.

from Chevron U.S.A., Inc. v. NRDC, 1984:

"A government agency must conform to any clear legislative statements when interpreting and applying a law, but courts will give the agency deference in ambiguous situations as long as its interpretation is reasonable."

from NYT:

https://www.nytimes.com/2024/01/17/us/supreme-court-chevron-case.html

"Members of the Supreme Court’s conservative majority seemed inclined on Wednesday to limit or even overturn a key precedent that has empowered executive agencies, threatening regulations in countless areas, including the environment, health care and consumer safety.

...The doctrine takes its name from a 1984 decision, Chevron v. Natural Resources Defense Council, one of the most cited cases in American law. Under it, judges must defer to agencies’ reasonable interpretations of ambiguous statutes."

Mark Stern's take in Slate re the respective views:

The three liberal justices, led by Kagan, mounted an impressive defense of Chevron in the face of their colleagues’ open hostility. At its core, Kagan explained, the doctrine is about respecting democratic choices. Congress (whom the people elect) passes laws that grant the president (whom the people elect) broad discretion to make certain policy choices by assigning key decisions to executive agencies; federal judges (whom the people do not elect) must defer to these decisions so long as the accountable officials interpret the law reasonably. Some choices are highly technical and rely on the agency’s specialized expertise. Others are contentious, allowing the agency to take sides in a public debate.

The remaining conservative justices were less dogmatic but made little effort to conceal their distaste for Chevron. Chief Justice John Roberts and Justice Amy Coney Barrett played it straight at first, asking real questions that hinted at an understanding of the mess that’ll flow from Chevron’s demise. But by the end of arguments, both were hounding Prelogar with telltale complaints about the ostensibly arbitrary and power-drunk executive branch crushing the rule of law. Justices Clarence Thomas and Samuel Alito, who have gone on the record against Chevron, were only a bit subtler than Gorsuch and Kavanaugh. The writing’s on the wall of the marble palace, despite the liberals’ fierce fight....

Here’s the bottom line: Without Chevron deference, it’ll be open season on each and every regulation, with underinformed courts playing pretend scientist, economist, and policymaker all at once. Securities fraud, banking secrecy, mercury pollution, asylum applications, health care funding, plus all manner of civil rights laws: They are ultravulnerable to judicial attack in Chevron’s absence. That’s why the medical establishment has lined up in support of Chevron, explaining that its demise would mark a “tremendous disruption” for patients and providers; just rinse and repeat for every other area of law to see the convulsive disruptions on the horizon.

https://slate.com/news-and-politics/2024/01/supreme-court-democrats-president-chevron-precedent.html

I think this case will probably be disastrous for everyone.

with agency policy and adj decisions made far more short term and in order to comply with political instruction, the effective presence of agency policy in support of national standards will collapse. i'm guessing the next step in the rightwing playbook is privatization of federal interests and properties. it's how oligarchy assume their place.

Under it, judges must defer to agencies’ reasonable interpretations of ambiguous statutes."

If "Chevron" is overturned as precedent, then if lawyers can find a hint of vagueness or ambiguity in the phrasing of a law, they will be able to pursue litigation for relief of any regulatory interpretation of that law whatsoever. Of course, you can easily predict that corporate lawyers will be able to discover some hint of ambiguity in almost every statute passed by Congress granting the exercise of broad regulatory powers to an agency of the executive branch. Complete specificity in legislation is so rare as to be almost imperceptible.

as an ad law fan, expecting legislators to actively specify implementation of regulatory law is so fucking dumb. not just rare-- impossible.

The U.S. Supreme Court on Monday agreed to temporarily let U.S. Border Patrol agents cut or remove razor-wire fencing that Texas officials placed along part of the Republican-governed state's border with Mexico to deter illegal border crossings.
The justices, in a 5-4 decision, granted a request by President Joe Biden's administration to pause a lower court's ruling that temporarily blocked federal agents from disturbing the fencing while litigation over the issue proceeds.

Two conservative members of the court - Chief Justice John Roberts and Justice Amy Coney Barrett - joined the three liberal justices in the majority, with conservative Justices Clarence Thomas, Samuel Alito, Neil Gorsuch and Brett Kavanaugh dissenting.
The New Orleans-based 5th U.S. Circuit Court of Appeals, which issued the disputed interim ruling, is set to hear arguments on Feb. 7 over whether Border Patrol agents violated Texas law by cutting the razor-wire barrier.

https://www.reuters.com/world/us/us-supreme-court-lets-border-patrol-remove-texas-razor-wire-fencing-now-2024-01-22/

The usual folks aren’t happy with the above and are looking forward to Feb 7 hearing

Plus Texas is apparently ignoring the ruling and putting up more razor-wire fencing.

Let these fuckers secede already

Abbott should go out there and get shot by Federal agents

Or get accidentally decapitated with concertina wire.

'The US Supreme Court has denied a last-minute appeal by attorneys for Alabama death row inmate Kenneth Smith, who is scheduled to be put to death Thursday using nitrogen gas – a wholly new method some experts have decried as veiled in secrecy amid concerns it could lead to excessive pain or even torture.'

This final detail in the story caught my eye:

Smith was convicted and sentenced to die, but an appeals court overturned the initial outcome and ordered a new trial. He was again convicted in the retrial, but this time his jury voted 11-1 for a sentence of life in prison without the possibility of parole.

The judge in Smith’s second trial, however, essentially vetoed the jury’s vote and sentenced the defendant to death – a practice known as judicial override that’s since been repealed in Alabama.

Barbaric

the texas border stuff seems bad

x-post 3 dissents to Alabama capital punishment by new means approach. Sotomayor notes many flaws in Alabama case including deprivation of discovery

Arguments going on now about kicking Trump off the ballot.

It's been interesting listening.

Here we go. Trump v. Anderson live tweet thread:

Jonathan Mitchell out here making the claim that the President is not an officer of the united states.

— Elie Mystal (@ElieNYC) February 8, 2024

SCOTUS heads: What was the shittiest legal argument put forth by lawyers that still, in the end, prevailed in the end? (Not nec the shittiest moral argument that's prevailed, as I'm sure there are plenty of that genre.)

add another "in the end" there for extra emphasis

And in the end, the court you make
https://www.youtube.com/watch?v=12R4FzIhdoQ

In 2006 Sam Alito looked like another Reagan-era hack; he's pure evil these days.

Not listening, but sounds like Alito is instructing Trump lawyers as to the argument they ought to be making, rather than the one they are?

Libs and conservatives do it all the time but not on behalf of such twaddle.

I know it's hard in the present tense to make such calls, but Alito has far eclipsed Scalia as the most damaging Justice of the last quarter century

Scalia was once solid or better on search-and-seizure and First Amendment cases whereas I can't think of a single time when Alito was right

Scalito may be the best celebrity portmanteau since Bennifer. Discuss amongst yourselves.

Tholito

-lito works almost every time, we can all agree

https://www.youtube.com/watch?v=DIu0jQ5TaRQ

https://bsky.app/profile/rickhasen.bsky.social/post/3kkw6lfr5nv2g

that seems to be the consensus. only question is whether it's unanimous or not.

Ugh. Stern at Slate is predicting 9-0 or 8-1 decision overturning Colorado re removing Trump from ballot

https://slate.com/news-and-politics/2024/02/supreme-court-trump-immunity-john-roberts.html

Will US Supreme Court delay on Trump immunity case when it comes to them

The result won't surprise me, the margin will.

They were asking zero questions about whether Trump was actually in insurrectionist, just about whether CO had the authority to kick him off the ballot, so it’s going to be a narrow ruling I expect.

this Court did NOT want to touch Jan. 6.

probably because at least two and the wife of one of these two think no insurrection happened

ok lol

“I would expect that a goodly number of states will say whoever the Democratic candidate is, you’re off the ballot, and others, for the Republican candidate, you’re off the ballot. It will come down to just a handful of states that are going to decide the presidential election. That’s a pretty daunting consequence,” Roberts added.

We are indeed watching the last remnants of the Old Republic being swept away

probably because at least two and the wife of one of these two think no insurrection happened

Correction: They think an insurrection is happening and it's up to them to stop it

It will come down to just a handful of states that are going to decide the presidential election

Wow, what a dystopian hellscape that would be

If it were to come to pass

When they were bringing up the idea that if the insurrection clause were self-executing then every act Trump in office after Jan. 6 would be invalid I wonder if the people he pardoned started sweating.

probably because at least two and the wife of one of these two think no insurrection happened

this Court did NOT want to touch Jan. 6

I can fondly recall how, during their confirmations, they were uniformly described as among the keenest legal minds of the nation, just the sort of deeply versed and brilliant jurists we could trust to disentangle for us the thorniest conundrums of constitutional interpretation. I mean, jeez, they look so impressive in their black robes, you'd think they could at least issue a definitive judgment that fully resolves the juridical requirements for applying section 3 or the 14th amendment.

https://i.imgur.com/XDKDX0o.gif