U.S. Supreme Court: Post-Ginsburg Edition

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Have at it.

TikTok to the (Alfred, Lord Sotosyn), Friday, 25 September 2020 15:08 (one year ago) link

I nominate AOC

LaRusso Auto (Neanderthal), Friday, 25 September 2020 15:09 (one year ago) link

i nominate tom cotton, a good guy with a gun

Karl Malone, Friday, 25 September 2020 15:12 (one year ago) link

get in here, goons

Blues Guitar Solo Heatmap (Free Download) (upper mississippi sh@kedown), Friday, 25 September 2020 15:13 (one year ago) link

Can Trump nominate himself?

Josh in Chicago, Friday, 25 September 2020 15:15 (one year ago) link

and continuing the SCOTUS term limit discussion, reposting the explainer
https://fixthecourt.com/2019/11/myth-facts-scotus-term-limits/

longtime caller, first time listener (man alive), Friday, 25 September 2020 15:19 (one year ago) link

No idea if these proposed changes are ideal or if they could ever plausibly come to pass, but I like that they are being put out there. It's a good step to start getting people used to the idea of major changes to the court.

Mario Meatwagon (Moodles), Friday, 25 September 2020 15:24 (one year ago) link

Bryant Johnson, Ruth Bader Ginsburg’s personal trainer, does push-ups as Justice Ginsburg lies in state in the U.S. Capitol.

Full video: https://t.co/vri1sJcUV6 pic.twitter.com/C11uVFeQlQ

— CSPAN (@cspan) September 25, 2020

you are like a scampicane, there's calm in your fries (bizarro gazzara), Friday, 25 September 2020 15:58 (one year ago) link

He isn’t stupid so wtf is he thinking https://t.co/uyEcGDZRIy

— Doug Henwood (@DougHenwood) September 25, 2020

brooklyn suicide cult (Dr Morbius), Friday, 25 September 2020 20:13 (one year ago) link

I'm very sorry but if the pushup video is real it's extremely funny

get a mop and a bucket for this Well Argued Prose (Simon H.), Friday, 25 September 2020 20:17 (one year ago) link

CNN reporting that it's Barrett:
https://www.cnn.com/2020/09/25/politics/donald-trump-amy-coney-barrett-supreme-court/index.html

jaymc, Friday, 25 September 2020 20:27 (one year ago) link

South Bend is really knocking it out of the park this year.

get a mop and a bucket for this Well Argued Prose (Simon H.), Friday, 25 September 2020 20:34 (one year ago) link

Whoever Trump was going to pick was going to be a horror story, so I expect soon to be reading about the many horrors of Ms. Barrett, which no doubt will be many and hair-raising. Lindsey Graham will love her.

the unappreciated charisma of cows (Aimless), Friday, 25 September 2020 20:37 (one year ago) link

democrats will have grave concerns and strongly worded appeals to decency

Give me a Chad Smith-type feel (map), Friday, 25 September 2020 20:39 (one year ago) link

democratic fundraising will go through the roof, blood will boil, the election will be won (eventually) by democrats. and at the end, it'll be a 6-3 conservative court for the forseeable future, and possible a 5-4 majority for another 20-30 years, unless the golden boy or gorsuch unexpectedly croak, which would be a tragedy

Karl Malone, Friday, 25 September 2020 21:53 (one year ago) link

those are impressive lifespans you're projecting for thomas and alito imo

Doctor Casino, Friday, 25 September 2020 22:39 (one year ago) link

They get magic life drugs injected in their butts

LaRusso Auto (Neanderthal), Friday, 25 September 2020 23:10 (one year ago) link

haha, well it also builds in known unknowns, like republicans preserving a seat in a future GOP presidency. let's role play it

2020 (the present. you are in hell)
barrett is confirmed before election. fuck you liberals
6-3 conservative majority

roberts is 65
thomas is 72
alito is 70
gorsuch is 53
the golden boy is 55
barrett is 48

breyer is 82
sotomayor is 66
kagan is 60

2021 (biden is elected. you are in tartarus)
biden wins. breyer tags out for a younger replacement. i will create SC justice names using this thread Fighting Baseball for Super Famicom: A League of Fake Americans POLL
6-3 conservative majority

roberts is 66
thomas is 73
alito is 71
gorsuch is 54
the golden boy is 56
barrett is 49

sotomayor is 67
kagan is 61
willie dustice is 50

EVENT
2024 election. The democrat has a 70% chance of victory (same as clinton v trump), due to me running this simulation. RNG: no joke, i rolled a random number from 1 to 10, with 1-7 being democratic victory and 8-10 being republican, and i rolled an 8. REPUBLICANS WIN

2025 (tom cotton is the president of the united states. you have killed 2 people now and haven't talked in weeks.)
tom cotton casts Executive Righteousness on thomas, 77 years old, who is replaced by Sleve McDichael
6-3 conservative majority

roberts is 70
alito is 75
the golden boy is 60
barrett is 53
sleve mcdichael is 50

sotomayor is 71
kagan is 65
gorsuch is 58
willie dustice is 54

EVENT
World War III, totally started by tom cotton. 2028 election. The democrat has a 80% chance of victory, due to me running this simulation. RNG: 3, democratic victory

2029 (first influencers on mars)
AOC is the president of the united states of america, fuck yeah. sotomayor, the second oldest justice at 75, taps out. bobsun dugnutt is the new junior united states supreme court justice.
6-3 conservative majority

roberts is 74
alito is 79
gorsuch is 62
the golden boy is 64
barrett is 57
sleve mcdichael is 54

kagan is 69
willie dustice is 58
bobsun dognutt is 50

EVENT
in 2031, the golden boy brett kavanaugh, just 66 years old, FUCKING DIES OUT OF NOWHERE and it's REALLY EMBARRASSING FOR HIM

2031 (VR sex surpasses videogames in revenue generation)
brett kavanaugh fucking dies out of nowhere, best thing that's happened in a generation. president AOC appoints a justice so left-leaning that she's impeached by sergeant ivanka trump, leader of the paramilitary republican subcommittee known as Gold Team. Onson Sweemey, the first justice with a normal name in 11 years, takes the golden boy's spot and shifts the balance toward a near-balance.

5-4 conservative majority

roberts is 76
alito is 81
gorsuch is 64
barrett is 59
sleve mcdichael is 56

kagan is 71
willie dustice is 60
bobsun dognutt is 52
onson sweemey is 50

EVENT
2032 Election. there's no more random numbers, it's just me making it up. the democrats win again. AOC is on the wheaties box.

then, near the end of her second term, the unspeakable happens. Samuel Alito, at the age of 85, just fucking dies out of nowhere.
2035
some observers expect the krang-like brain of mitch mcconnell to somehow delay a democratic confirmation in his spot, but AOC casts total victory and again appoints an extremely-left greatest of time justice named Todd Bonzalez.
5-4 liberal majority

roberts is 80
gorsuch is 68
barrett is 63
sleve mcdichael is 60

kagan is 75
willie dustice is 64
bobsun dognutt is 56
onson sweemey is 54
todd bonzalez is 50

EVENT
2036 Election. it's been 8 years of supreme relaxation and greatness. even gum is genuinely _better_. everything's great. something has to change, so somehow it's time for PRESIDENT CHARLIE KIRK

2037
under PRESIDENT CHARLIE KIRK, roberts immediately resigns. the new chief justice of the united states is SCOTT DOURQUE, 50 years old, catholic conservative
5-4 liberal majority

chief justice scott dourque, 50
gorsuch is 70
barrett is 65
sleve mcdichael is 62

kagan is 77
willie dustice is 66
bobsun dognutt is 58
onson sweemey is 56
todd bonzalez is 52

Karl Malone, Friday, 25 September 2020 23:28 (one year ago) link

I actually think that’s not a terrible way of gaming things out. The arc of the moral universe is long. We fight the fights that we have today, and we train our young folks. Good post KM.

sound of scampo talk to me (El Tomboto), Friday, 25 September 2020 23:32 (one year ago) link

DOGNUTT

LaRusso Auto (Neanderthal), Friday, 25 September 2020 23:32 (one year ago) link

in 2031, the golden boy brett kavanaugh, just 66 years old, FUCKING DIES OUT OF NOWHERE and it's REALLY EMBARRASSING FOR HIM

whoa how did he die?!

superdeep borehole (harbl), Friday, 25 September 2020 23:44 (one year ago) link

Shot by one of Dick Cheney's grandkids

LaRusso Auto (Neanderthal), Friday, 25 September 2020 23:49 (one year ago) link

Karl, that was perfect (ly horrifying).

Josh in Chicago, Friday, 25 September 2020 23:50 (one year ago) link

Shot by one of Dick Cheney's grandkids

― LaRusso Auto (Neanderthal), Friday, September 25, 2020 6:49 PM (four minutes ago) bookmarkflaglink

At a UB40 reunion concert

jaymc, Friday, 25 September 2020 23:55 (one year ago) link

in 2031, the golden boy brett kavanaugh, just 66 years old, FUCKING DIES OUT OF NOWHERE and it's REALLY EMBARRASSING FOR HIM

whoa how did he die?!

he dies of doing a kegstand in the kitchen of amy klobuchar's wake

Karl Malone, Friday, 25 September 2020 23:57 (one year ago) link

karl this is some excellent scenario running and first rate use of the Fighting Baseball thread and i applaud it

i have a rejoinder percolating but it may take a while to get around to crunching the hard numbers so i just wanted to say that for now

Doctor Casino, Saturday, 26 September 2020 00:00 (one year ago) link

_in 2031, the golden boy brett kavanaugh, just 66 years old, FUCKING DIES OUT OF NOWHERE and it's REALLY EMBARRASSING FOR HIM_

whoa how did he die?!


Under a pile of thousands of baseball tickets.

Boring, Maryland, Saturday, 26 September 2020 00:04 (one year ago) link

xp thanks doctor c! your questioning of that was really valid, and i don't think my answer is any sort of proof of anything. i got lazy and didn't project it out to 2045 (my original goal), but even though i ended with a slim 5-4 liberal majority by 2037, i don't think it takes much to keep it at a 5-4 conservative majority either. then again, maybe the republicans will truly never win again (lol) and it will be 6-3 liberal by 2040, who knows

Karl Malone, Saturday, 26 September 2020 00:08 (one year ago) link

So we get 40 some years of this...from an article Barrett co-wrote as quoted by SCOTUS blog

The article also noted that, when the late Justice William Brennan was asked about potential conflict between his Catholic faith and his duties as a justice, he responded that he would be governed by “the oath I took to support the Constitution and laws of the United States”; Barrett and Garvey observed that they did not “defend this position as the proper response for a Catholic judge to take with respect to abortion or the death penalty.”

https://www.scotusblog.com/2018/07/potential-nominee-profile-amy-coney-barrett/

curmudgeon, Saturday, 26 September 2020 00:53 (one year ago) link

Can't wait for her book, "Jesus is the Speaker of MY House"

LaRusso Auto (Neanderthal), Saturday, 26 September 2020 00:59 (one year ago) link

@ Karl - okay! you've already gotten there, but yeah basically my rejoinder would be that you didn't actually end up showing "a 6-3 conservative court for the forseeable future, and possible a 5-4 majority for another 20-30 years." but the scenario was worth it anyway. a quibble: you don't game out the Senate, which i respect because that would be even more absurd fanfic work, but it's worth allowing at least dice-roll possibilities that the Dems control the Senate during your Republican admins, AND that they stand firm against prematurely ghoulish ideologues like Sleve McDichael, whose pasty-faced appearance and hot-mic comments during the nominations process turn the public against him. i would not put money on that chance myself, but it's at least possible.

also though, a fair bit hinges on that first d10 roll and some choices about the EVENTS - suppose Biden rolls a 6 in 2024, and is re-elected to a foggy but popular second term, his "Reagan in the late 80s" zone, AND ALSO that during that term, Thomas has a health scare and decides to retire. i don't know that the odds are so heavily stacked against something like that.

obviously in that event, Biden's replacement pick would be the mushy, not-all-that liberal Rey McSriff (48), a former bank-industry lobbyist, seen as a move back in the direction of racial and gender diversity on the court who will at least be a reliable liberal vote in civil-rights and abortion cases.

so in january 2029, we've got:

roberts is 74
alito is 79
gorsuch is 62
the golden boy is 64
barrett is 57

kagan is 69
willie dustice is 58
bobsun dognutt is 50
rey mcsriff is 50

eight years of the biden administration have left many festering wounds unaddressed, but thankfully the republican "gold team" have been mostly braying in the margins without control of either congress or the executive to formally empower them. on the other hand, in the absence of the Cotton presidency, World War III has not happened, but let's say AOC wins in 2028 anyway. why not?!

thus, following B.K.'s horrible death in 2031, AOC's super left-wing appointee is able to remain in office. you didn't name them but it's pretty obvious you had Shown Furcotte in mind. maybe kagan is worried enough about the next election, and spooked by what is by then a Sunday-morning-show conventional wisdom about "the Tragedy of Ginsburg," that she retires too. by this point AOC is not fucking around at all and appoints millennial twitter SJW Raul Chamgerlain, 44. if AOC goes on to win a second term and also grabs the Alito seat, then in 2035 we have:

roberts is 80
gorsuch is 68
barrett is 63

raul chamgerlain is 49
willie dustice is 64
bobsun dognutt is 56
rey mcscriff is 56
shown furcotte is 53
todd bonzalez is 50

... and our biggest problem is that sometimes McSriff aligns with the conservatives to dissent in 5-4 corporate-law decisions, and we see a lot of online left grousing about how Biden wasted a pick on her.

now yes, i admit........... this depends on the democrats winning four straight national elections. IMPOSSIBLE you say? or merely... improbable???! depends how much faith you put in changing demographics etc. but if none of the Dem-appointed justices die in office, they can also afford to lose one of those elections! because it might be that the Republicans can only replace Thomas or Alito with McDichael or Dorque, giving them an edge in age but not a leg up in the balance of the court.

Doctor Casino, Saturday, 26 September 2020 15:08 (one year ago) link

todd bonzalez makes history as the first male latino justice

superdeep borehole (harbl), Saturday, 26 September 2020 15:15 (one year ago) link

is there a relevant quote linking Barrett's sect to The Handmaid's Tale?

brooklyn suicide cult (Dr Morbius), Saturday, 26 September 2020 15:40 (one year ago) link

there must be. ominous lord, truth is stranger than fiction

Karl Malone, Saturday, 26 September 2020 15:48 (one year ago) link

xp

doc casino, first of all, obviously i had Shown Furcotte in mind. but secondly, the rest of your scenario seems plausible!

obviously gaming it out like that is a goof, but i did actually learn a few things. or maybe not. i feel like just laying out their ages, combined with the fact that they have lifetime appointments, explains 99% of the game:


christmas near-future:

roberts is 65
thomas is 72
alito is 70
gorsuch is 53
the golden boy is 55
barrett is 48

breyer is 82
sotomayor is 66
kagan is 60

that there is a stacked deck, combined with republican weakness (in terms of what we might expect, possibly overoptimistically, from their presidential chances for the next few decades after elevating a white supremacist fascist to the presidency and then ripping the country to shreds in an attempt to keep him there). even with a couple 2-term democratic administrations in a row, through 2036, there is still a decent chance that at least 5 or even all 6 of the conservative majority stays right where they are, their ass-molds worn deep

Karl Malone, Saturday, 26 September 2020 16:00 (one year ago) link

in unrelated news, just before i fell asleep face down on the couch last night, i ran across a disturbing headline about increasing the maximum human lifespans beyond its current soft limit of 125. apparently the consensus is that it will soon (10 years?) be possible to extend human lifespans using genetic modifiers, physical devices, and secret codes. https://en.wikipedia.org/wiki/Life_extension jfc

Karl Malone, Saturday, 26 September 2020 16:07 (one year ago) link

agreed, it's a useful exercise to grasp exactly how much the age advantage of the GWB and DJT appointees presses on into the future. but also, focusing too much on that just takes us into a zone of gloom, so unless it's directly useful for motivating present-day action and the long-term fight, i think it's also useful to bear in mind all the ways that the scenario could suddenly break down. nobody saw Scalia's death coming, for example, even though he was 79. that ended up working out horribly for the cause of justice and freedom, but it could have gone differently. so long as our rights are subject to these bizarre matters of fate and circumstance, we may as well remind ourselves that there are ways the probabilistic parts could break our way.

and the stacked deck there does look better the moment Biden can replace Breyer, which i think we all do need to be praying for (or whatever equivalent practice).

and... all these scenarios also presume a successful barrett confirmation. tbh, i'm pretty doom-and-gloom about that, seems like there's no reason to think it won't happen. but it's still probably not good for my head to already accept her as a solid number until 2049 or w/e. like if i'm driving myself crazy with all the bad things that have already happened, and the ones that could probably happen, and the ones that are near-certainties, that's a lot to do to my head, if i'm not also considering the good equivalents of all of those things.

Doctor Casino, Saturday, 26 September 2020 16:27 (one year ago) link

there's also some non-zero chance that, in the event that a Democrat wins the presidential race four times in a row and this permanent 5-4 Court keeps shutting down every exciting thing the people are turning out to vote for, then a mandate for court-packing develops much much more quickly than we might expect right now.

Doctor Casino, Saturday, 26 September 2020 16:30 (one year ago) link

so long as our rights are subject to these bizarre matters of fate and circumstance, we may as well remind ourselves that there are ways the probabilistic parts could break our way.

otm

i know that's not a convincing or comforting thought for everyone, but to me that really is what gives me hope

Karl Malone, Saturday, 26 September 2020 16:44 (one year ago) link

NEW: Senate Democrats say they will press President Trump’s SCOTUS nominee to commit to recuse herself if the justices hear a case that could impact the outcome of the fall elections, @mkraju reports.

— Ana Cabrera (@AnaCabrera) September 25, 2020

xyzzzz__, Saturday, 26 September 2020 16:44 (one year ago) link

That seems a little dumb

Mario Meatwagon (Moodles), Saturday, 26 September 2020 16:46 (one year ago) link

I mean it makes sense but they'd still have a 5-3 advantage anyway

LaRusso Auto (Neanderthal), Saturday, 26 September 2020 16:49 (one year ago) link

"Will you commit to not doing the exact thing you were hired for" is a dumb question

Mario Meatwagon (Moodles), Saturday, 26 September 2020 16:52 (one year ago) link

and... all these scenarios also presume a successful barrett confirmation. tbh, i'm pretty doom-and-gloom about that, seems like there's no reason to think it won't happen

i will continue to return to my dumb "we simulate the future and then experience it in real time, somehow diminished, as something that was already familiar" theory, until someone or something convinces me that it's not accurate. in that line of thinking, you can already see the barrett confirmation and how it happens. i already saw a headline, last night, talking about how barrett was confirmed in October. i looked at the calendar and it was september 25th, then re-read the headline and it still said that she was confirmed in October, past tense. i can't remember where i saw it, and i had a socially distanced hangout with a friend last night and got way too drunk. but still, it was there all the same.

that was just a drunken horror, but i woke up today and it's still there. the republicans have the votes. 2 have been allowed to deviate (murkowski and collins), which just so happens to allow exactly enough remaining republicans to unilaterally install barrett. what a coincidence. this outcome has already been focus-grouped on a national scale - it turns out that most republicans think it's a great idea, most democrats think it's a bad idea, and the majority of "independents" think it's a bad idea. it sounds like most ideas these days. so they'll do it, because they can.

we're currently simulating the outraged response, right now. at least, i am. and then, when it happens, it won't be the first time.

---

^i think all of that is a very bad way to go about thinking about life, believe it or not. but that's what i see happening over and over, lately.

Karl Malone, Saturday, 26 September 2020 16:55 (one year ago) link

xpost they're not asking her to not be a justice, they're saying 'Hey, you were literally just nominated by one of the President candidates in this election 5 minutes before the election, maybe it's a conflict of interest for you ruling on a case challenging his results".

LaRusso Auto (Neanderthal), Saturday, 26 September 2020 16:56 (one year ago) link

But this is the primary reason they are in such a rush. If she can't guarantee to hand over the election, it's pointless for Trump. Surely he already told her she needs to deliver that vote, or there would be a different pick.

Mario Meatwagon (Moodles), Saturday, 26 September 2020 16:59 (one year ago) link

lol of course it's not going to actually happen but would you rather the Democrats not try it first so that they can frame it as "Justice Coney Barrett refused to recuse, she and Trump win, while Americans lose!"

LaRusso Auto (Neanderthal), Saturday, 26 September 2020 17:03 (one year ago) link

I mean, compared to other things they should be trying, this is VERY low on my list of importance and I wouldn't want it to take the place of promising to pack the fuck out of courts, but we're kinda fucked unless someone has a McCain surprise during the vote.

LaRusso Auto (Neanderthal), Saturday, 26 September 2020 17:04 (one year ago) link

The Supreme Court on Friday said a legal challenge brought by abortion clinics in Texas against a state law banning most abortions after about six weeks of pregnancy can move forward.

The court sided with providers in allowing them to pursue a challenge against some of the defendants named in its suit, namely "executive licensing officials" who take enforcement actions against the clinics if they violate Texas' abortion law. The abortion clinics' earlier efforts to block enforcement of the law had been unsuccessful because the ban's unique design insulated it from federal court review.

In a separate unsigned opinion, the Supreme Court dismissed a challenge to the Texas law brought by the Justice Department.

Max Hamburgers (Eric H.), Friday, 10 December 2021 15:31 (one month ago) link

scotus is a fucking joke

(•̪●) (carne asada), Friday, 10 December 2021 15:32 (one month ago) link

four weeks pass...

Select members of scotus getting saucy in this vax mandate hearing.

Josh in Chicago, Friday, 7 January 2022 16:06 (one week ago) link

Ohio's lawyer arguing at the Supreme Court against OSHA vaccine-or-test mandate for workers is arguing remotely today because he tested positive for the virus as part of the Supreme Court's own test mandate for lawyers. Confirmed via @tomhals

— Lawrence Hurley (@lawrencehurley) January 7, 2022

Josh in Chicago, Friday, 7 January 2022 16:07 (one week ago) link

lol J0n3s D@y alumn.

concentrating on Rationality (the book) (will), Friday, 7 January 2022 17:30 (one week ago) link

https://slate.com/news-and-politics/2022/01/supreme-court-covid-vaccine-mandates.html
Lithwick and stern writing together article

A majority of the justices on the Supreme Court may not see COVID-19 as an emergency. But they do see it as an opportunity. This unprecedented pandemic, the deadliest in American history, has forced the executive branch to act swiftly and creatively at each stage of the crisis. Facing an often-deadlocked Congress, President Joe Biden has drawn on old statutes to establish new regulations to stop the coronavirus from spreading and killing more people. Yet in so doing, he has given the Supreme Court’s Republican-appointed justices a chance to hobble his whole agenda. And during oral arguments over Biden’s vaccine mandates on Friday, these justices made it painfully clear that they will also seize this moment to grind down the federal government’s ability to perform even its most basic functions as well

curmudgeon, Sunday, 9 January 2022 15:52 (one week ago) link

Jerome Frank:

The fact is, and every lawyer knows it, that those judges who are most lawless, or most swayed by the “perverting influences of their emotional natures,” or most dishonest, are often the very judges who use most meticulously the language of compelling mechanical logic, who elaborately wrap about themselves the pretense of merely discovering and carrying out existing rules who sedulously avoid any indication that they individualize cases.

So who you gonna call? The martini police (Alfred, Lord Sotosyn), Sunday, 9 January 2022 15:54 (one week ago) link

Which obv is exactly why "originalism" is such bullshit. The left needs to do more to challenge not just the idea of originalism, but the idea that it's a serious intellectual position at all rather than just a cover story for right-wing agendas.

Some of the discussion of the Friday Covid mandates cases has unfortunately gotten bogged down by right-wingers pointing out that Sotomayor made some factual errors in discussing the number of Covid cases. Gorsuch also offered misleading numbers on the flu vs Covid and was only justice to not wear a mask.

curmudgeon, Sunday, 9 January 2022 17:27 (one week ago) link

WASHINGTON (AP) -- Supreme Court blocks vaccine-or-test rule for US businesses, but allows vaccine mandate for most health care workers.

So who you gonna call? The martini police (Alfred, Lord Sotosyn), Thursday, 13 January 2022 19:35 (six days ago) link

they telegraphed that one

more difficult than I look (Aimless), Thursday, 13 January 2022 19:44 (six days ago) link

To be fair, from what I read by labor law scholars, this use of OSHA was very aggressive. A more liberal court probably would have allowed it, but it was never a slam dunk that it was a legitimate use of its authority.

Public health has been a state authority for pretty much ever — which is why even some conservative-leaning federal courts have upheld state mask mandates etc.

I mean, mandates imposed at the state level.

yeah obv I agree with what Biden was trying to do but it's such a workaround that I would've been surprised had it held

frogbs, Thursday, 13 January 2022 19:50 (six days ago) link

but that's the kind of fuck-you-let's-do-this attitude I wanted: get enough people vaccinated as possible until the inevitable SCOTUS muffling.

So who you gonna call? The martini police (Alfred, Lord Sotosyn), Thursday, 13 January 2022 19:52 (six days ago) link

There is also language suggesting that OSHA could come back with a narrower mandate for employees who work in "particularly crowded or cramped environments." Not sure SCOTUS would uphold it, but they're conspicuously leaving the door open. https://t.co/ZDFVkzP0X2 pic.twitter.com/WETNR5hxeJ

— Mark Joseph Stern ***FAIR COLAs FOR SLATE*** (@mjs_DC) January 13, 2022

So who you gonna call? The martini police (Alfred, Lord Sotosyn), Thursday, 13 January 2022 20:02 (six days ago) link

I saw some insist this was not a workaround and was a properly delegated power to OSHA. Plus, if Biden waited to see if Congress could pass a bill more explicitly giving OSHA pandemic power, that would never happen in a 60 vote Senate.

David Dayen at the American Prospect keeps touting countless things the Executive branch can do via agencies and executive orders, but Biden is not as brave on most of these items as we want. But yeah as Alfred said, give it a shot and make the Court tell you you’re wrong

curmudgeon, Friday, 14 January 2022 18:31 (five days ago) link

Is there good data at this point on what vaccines actually do to prevent spread, as opposed to severe illness? Also, since most vaccinated people are pretty safe from severe illness themselves, it's hard to see what the particular occupational hazard is from an unvaccinated person. I'm all for getting as many people vaccinated as possible in whatever way possible, but it seems like the goal of that is to prevent death and prevent hospitals from getting overwhelmed, not protecting vaccinated people who work with the unvaccinated. So I can see why it's not exactly part of OSHA's mandate. NB: did not read the decision yet so IDK what the basis actually was.

longtime caller, first time listener (man alive), Friday, 14 January 2022 18:37 (five days ago) link

Which obv is exactly why "originalism" is such bullshit. The left needs to do more to challenge not just the idea of originalism, but the idea that it's a serious intellectual position at all rather than just a cover story for right-wing agendas.

That's painfully obvious when you study their opinions. Moreover, the whole idea that we can know the precise meaning of words used hundreds of years ago, let alone the minds of the drafters, is a chimera.

jimbeaux, Friday, 14 January 2022 18:37 (five days ago) link

Law journals have been full of liberal critiques of originalism for decades. That means exactly dick squat. Only having a majority on the court matters.

longtime caller, first time listener (man alive), Friday, 14 January 2022 18:39 (five days ago) link

True enough, but the left/liberals have lost that battle for the foreseeable future. IMHO, we need to start looking to the future and thinking long-term. That's what the Federalist Society did, and look how that turned out.

jimbeaux, Friday, 14 January 2022 18:41 (five days ago) link

I suppose it would be helpful to instill more ideological uniformity and discipline among future liberal judicial nominees. Set policy priorities and make sure everyone on the list shares them. You still need to win elections to get them confirmed though.

longtime caller, first time listener (man alive), Friday, 14 January 2022 18:46 (five days ago) link

I don't know about uniformity, but certainly more of a focus on clerkships and judgeships, and more engagement with the political process.

jimbeaux, Friday, 14 January 2022 18:53 (five days ago) link

Most law grads are moderate to liberal and there is already a massive focus on getting clerkships.

longtime caller, first time listener (man alive), Friday, 14 January 2022 18:57 (five days ago) link

That wasn't my experience, but I did graduate from law school more than two decades ago.

jimbeaux, Friday, 14 January 2022 18:59 (five days ago) link

Originalism only works as a doctrine because conservatives promote a mindless cult of deifying the Founding Fathers and their work as embodying a collectively inspired wisdom. Likewise, many christian churches promote the myth that every word of the Bible was dictated by God through miraculous divine inspiration. It's a myth that strongly appeals to conservative minds. Arguing won't dispel its power, because its power is emotional.

more difficult than I look (Aimless), Friday, 14 January 2022 19:14 (five days ago) link

You're not going to reach the cultists, but I think there are non-cultists to whom the basic idea of "originalism" sounds commonsensical, and they've never heard it seriously challenged. And fundamentally I don't think it's true that you can't have impact over time with simple messages repeated over and over. (See "$15 an hour," e.g.)

Simple message in this case being, "There's no such thing as originalism, it's just a code word for far right extremism." Calling things "code words" makes people feel like they're onto something, they can see through the bullshit, etc.

It's a myth that strongly appeals to conservative minds.

Maybe so, but the smart ones know it's bullshit.

jimbeaux, Friday, 14 January 2022 19:20 (five days ago) link

They also know it works to their benefit, so they use it and love it.

more difficult than I look (Aimless), Friday, 14 January 2022 19:21 (five days ago) link

Anyone who's taken a fifth grade English class understands that texts are subject to many and endless interpretations, so I never understood originalism or "strict construction" as anything but feints by cowardly sadists who want to pretend the Fourteenth Amendment didn't happen.

So who you gonna call? The martini police (Alfred, Lord Sotosyn), Friday, 14 January 2022 21:41 (five days ago) link

Russ Feingold, a Democratic former senator from Wisconsin and leader of the American Constitution Society, a progressive group active in recommending judges

From that Reuters article link

curmudgeon, Sunday, 16 January 2022 20:35 (three days ago) link

Anyone who's taken a fifth grade English class understands that texts are subject to many and endless interpretations, so I never understood originalism or "strict construction" as anything but feints by cowardly sadists who want to pretend the Fourteenth Amendment didn't happen.

― So who you gonna call? The martini police (Alfred, Lord Sotosyn), Friday, 14 January 2022 21:41 (two days ago) link

I don't agree with this either though. Texts don't have "endless" correct/plausible interpretations, and some interpretations are more correct than others. Law as a discipline would be impossible if text was treated this way. No statute would be decipherable or enforceable. Constitutions are by their nature looser than statutes, but they still have meaning. You can't read the first amendment and say "it's fine for there to be a U.S. official state religion." Unfortunately some parts of the constitution just suck, and amendment has become infeasible, so we are forced to stretch it to its limits at times.

longtime caller, first time listener (man alive), Sunday, 16 January 2022 21:15 (three days ago) link

One way I sometimes think about it is that originalism itself isn't really originalist. Because the drafters of the constitution would not have assumed that the world would remain static and unchanging and that words they wrote would be sufficient to provide for the totality of U.S. federal governance forever. Some parts of the constitution are by nature broadly worded and invite interpretation, while others do not. The third amendment is pretty narrow. "No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law." Hard to see what that means except exactly what it sounds like it means. The meaning isn't going to change with time. But a phrase like "the freedom of speech" is by its nature broad and open to interpretation and bound to change as the nature of communication changes.

longtime caller, first time listener (man alive), Sunday, 16 January 2022 21:21 (three days ago) link

the drafters of the constitution would not have assumed that the world would remain static and unchanging

Jefferson sez the earth belongs, in usufruct, to the living.

First time I heard that I had to look up "usufruct," as I suspect most modern people do.

Only just today did I learn the etymology, though. Literally "use of the fruit."

umami dearest (Ye Mad Puffin), Sunday, 16 January 2022 21:50 (three days ago) link

I don't agree with this either though. Texts don't have "endless" correct/plausible interpretations, and some interpretations are more correct than others. Law as a discipline would be impossible if text was treated this way.

I agree they don't (novels either). However.

So who you gonna call? The martini police (Alfred, Lord Sotosyn), Sunday, 16 January 2022 22:06 (three days ago) link

That Justice Sotomayor is choosing to participate in #SCOTUS arguments remotely because Justice Gorsuch (and *only* Justice Gorsuch) refuses to wear a mask on the bench is such a perfect microcosm of how millions of Americans are experiencing the pandemic—from both perspectives.

— Steve Vladeck (@steve_vladeck) January 18, 2022

Max Hamburgers (Eric H.), Tuesday, 18 January 2022 15:31 (yesterday) link

Even worse:

Nina Totenberg reports that (1) the Chief Justice asked his colleagues to mask up out of respect for Sotomayor’s health concerns, (2) only Gorsuch refused, and (3) his refusal forced Sotomayor to participate in arguments and conference remotely. https://t.co/DmsQV8j7Wz pic.twitter.com/7JG5hMN0q7

— Mark Joseph Stern (@mjs_DC) January 18, 2022

So who you gonna call? The martini police (Alfred, Lord Sotosyn), Tuesday, 18 January 2022 15:32 (yesterday) link

more like HELL NOtomayor, amirite

gorsuch an asshole

umami dearest (Ye Mad Puffin), Tuesday, 18 January 2022 15:34 (yesterday) link

"but mah rights"

Tracer Hand, Tuesday, 18 January 2022 16:03 (yesterday) link

i wish (redacted) upon gorsuch, he at minimum deserves hands thrown

class project pat (m bison), Tuesday, 18 January 2022 16:04 (yesterday) link

Gorsuch a dick

Chappies banging dustbin lids together (President Keyes), Tuesday, 18 January 2022 16:18 (yesterday) link

Good stuff from Lithwick:

But the hyperfocus on Gorsuch’s unknown motivations strikes me as nearly as much of a distraction as the hyperfocus on who said incorrect things at oral argument, and who sought changes in official transcripts about what we thought we heard. Justices say mistaken things at oral argument all the time, especially when they are hearing fast-tracked cases. The big lesson here isn’t about verbal errors at argument or Gorsuch’s lack of concern for his colleagues. The reason his noncompliance with the court’s formal mask rule is news is because it is yet another example of the justices having rules but refusing to apply them to themselves. That’s the real issue with regard to masks, just as it is to judicial ethics, and that’s the reason why this debacle is damaging the court’s public standing. Several smart lawyers have written to ask me why Chief Justice John Roberts cannot simply order his colleagues to follow the same mask requirements imposed on everyone else. The short answer is that he cannot order his colleagues to do anything that falls within the realm of ethical behavior.

For decades, court reformers—and most recently President Joe Biden’s commission on court reform—have noted that the court’s financial and ethical rules are purely advisory, that nobody needs to follow them and that the justices will not enforce them against one another. When it comes to adopting a set of rules governing how the nine justices conduct themselves when giving speeches, or engaging in public activities, each of the nine is a law unto themselves. Efforts to remedy that, in the interest of making the court more accountable and also more legitimate, are persistently rebuffed. To extend Marcus’ analysis about Gorsuch, nobody is the boss of Gorsuch because nobody is the boss of any of the justices.

So who you gonna call? The martini police (Alfred, Lord Sotosyn), Tuesday, 18 January 2022 19:37 (yesterday) link

nominate two justices for every one that retires IMO

lol what’s the line on Sinema torpedoing the nom? (who will almost certainly be just to the right of Garland)

concentrating on Rationality (the book) (will), Tuesday, 18 January 2022 23:41 (yesterday) link

Joe Manchin's Unemployed Nephew nominated to the bench

papal hotwife (milo z), Wednesday, 19 January 2022 01:13 (sixteen hours ago) link


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