U.S. Supreme Court: Post-Ginsburg Edition

kavanaugh citing/endorsing rehnquist's stance in the other big piece of supreme court news

with Bush v Gore, we have to remember this was actually the Bush campaign playing defense. Bush won the Florida vote on original count, Gore was the party that contested the results and wanted a manual recount, and SCOTUS halted it. Gore winning at SCOTUS unfortunately probably wouldn't have helped as Florida officials were working on selecting electors who would vote the way they felt the vote went, meaning they'd vote for Bush even if the recount found Gore the winner, which would tie more up in court.

In this scenario, Trump would be Gore, and from the looks of it, his move would probably be trying to file lawsuits in several swing states claiming the count from election night should be the prevailing count, a move essentially asking for the remove of legal ballots from the count, which is the opposite of what Gore argued. it's easier to prevail in SCOTUS in a federal election case if you're the party that won.

i get nerves re: SCOTUS, but they're already seated, and voting against Trump isn't going to put them in any kind of jeopardy - no SCOTUS justice has ever been impeached successfully. SCOTUS has sided with Trump on many cases, but that's because many of the conservative jurists are lunatics and probably would have voted the same way even pre-Trump. but some of the more ludicrous cases that have made it to SCOTUS, even the 5-4 conservative court bucked Trump.

i'm no longer going to say something won't happen because that's fruitless, but i'd rather focus on what we have control over at this point.

*justices

there are literally friends of mine now who seem to think all Trump has to do is say "I won, do u agree SCOTUS, how many EVs do you think I deserve?" and SCOTUS hold up cards with numbers on them like they're figure skating judges.

good article: https://slate.com/news-and-politics/2020/09/can-trump-supreme-court-decide-election.html

I'm one of the "discrete majorities" that a liberal Court would've protected under Footnote Four, but since Ginsberg's death I've been numb if not indifferent to the inevitability of Barrett's confirmation. Too close to election, I suppose.

xp -- that article is somewhat out of date; for instance, as of today, the "legal dispute over how long mail-in ballots will be counted for" in Wisconsin is no longer disputed but settled, and not in favor of voters

it's the most recent one I could find, especially considering how quickly the courts are moving through the barrage of state cases. I don't think its general thesis is out of date at all though

this one gets at what I had mentioned before: http://slate.com/news-and-politics/2020/10/barrett-election-bush-v-gore-vengeance.html

I think the fear for some people is less that the Court is going to wave a wand and overturn the results, but rather how much fuckery and voter disenfranchisement they will muster up in the next week and immediately after.

lol why is anybody worrying? she's got this, chill out

https://i.imgur.com/otf79gg.jpg

It doesn’t matter what this court does, this court is illegitimate.

If the Dems don’t pack this shit I’m going fucking tankie

this is a pretty grim night in US history. even if we all saw it coming and even if there are possible ways out of it, it is so fucking wrong and unfair and cruel that things came to this.

If the Dems don’t pack this shit I’m going fucking tankie

https://i.imgur.com/mw5dlee.png

Silence on my twitter timeline, pretty much. Had to go to newspapers to look at the confirmation headline.

It is literally the only thing people on my Twitter timeline are discussing, save from the Tory MP's big dinners

Ha, I bet it was the ghost of RBG that gave Bitch McConnell them purple hands! Yaaaaas Queen!

What do you mean I have to file a medical visa if I'm admitted to an out-of-state hospital?

Can’t wait for Breyer not to retire over the next four years and then President Tom Cotton gets to name his replacement

Can't wait for the first "Cotton eyes Joe" headline

BIDEN - It Beats Picking Cotton!

These dueling opinions from Kavanaugh and Kagan on mail-in ballots may be the most important story of the day:

Kavanaugh: late ballots could “flip the results of an election”

Kagan: “there are no results to ‘flip’ until all valid votes are counted”https://t.co/o4Ew6IEQ2C

— Ryan Lizza (@RyanLizza) October 27, 2020

Bush v. Gore was so weird and seemingly such an anomaly that I feel Dems rolled over partly out of a misplaced sense of honor and partly in shock. If this happened again in even more dramatic fashion in this current climate, I feel the SC might as well be voting to light the country on fire.

BIDEN - It Beats Picking Cotton!

xpost to be honest, this is the type of fuckery that I think is more likely to succeed in the Supreme Court. States basically successfully lobbying to discard late-received votes due to the bullshit narrative of it 'flipping' the election. Obviously Justice Kagan is correct but it won't matter as the conservative bloc will win this battle every time.

this unfortunately means we gotta do our shit and get our ballots back early and show up in person to vote if it looks like we're cutting it close. it's bullshit, it's unfair, but it's the only way to be sure that we exterminate the cockroach in the White House.

Kavanaugh's concurrence in the Wisconsin case is sloppy AF.

(A thread.)

— Tierney Sneed (@Tierney_Megan) October 27, 2020

So Barrett might not even be the most incompetent justice. This is fine.

ACB's opinions will also be sloppy, but mostly because of the stigmata blood dripping all over the pages

Does sloppy matter when they can do whatever the fuck they want?

I prefer fastidious fascism myself

Yeah, the more power they gain and hold, the less they need to pretend to care about correct jurisprudence

https://www.washingtonpost.com/outlook/2020/10/30/conservative-judges-voting-theory/

By
Neal Katyal (who is waking up since his 2017 op-ed saying libs should support Gorsuch getting on the S. Court ) and Joshua A. Geltzer

A novel legal theory is surging among conservative judges and justices. The notion is that, under the Constitution, only state legislatures — without any input from state executives or courts — may set the rules for presidential elections. This theory is clearly a misunderstanding of constitutional election law. But it’s actually worse than that: It fundamentally misapprehends how law itself functions.

Here’s what everyone agrees on: Article II of the Constitution says that “[e]ach State shall appoint, in such Manner as the Legislature thereof may direct,” that state’s representatives to the electoral college, which chooses the president. No one disputes the basic reality that state legislatures typically take the lead in setting rules for the statewide elections that choose electors who, in turn, choose a president.

But in the past couple of weeks, the focus on two words in that constitutional text — “the Legislature” — has been taken to fanatical extremes. Most recent — and most absurd — is a decision on Thursday by a federal court of appeals that, five days before Election Day (too late for the state to do anything to respond to it), abruptly changed the rule for Minnesota voters from a requirement that their mail-in ballots be sent by Election Day to a requirement that those ballots be received by Election Day, thus unsettling at the last moment both the law and voters’ expectations. The two judges voting for that outcome insisted that a state official who’d interpreted state law to allow the more accommodating deadline had intruded on a power reserved to the legislature alone. It’s the same basic notion that Justice Neil M. Gorsuch expressed in voting to halt a decision by North Carolina’s State Board of Elections interpreting North Carolina law on election rules, and that Justice Samuel A. Alito Jr. articulated in voting to halt a Pennsylvania Supreme Court decision interpreting that state’s election laws. Alito insisted on strict adherence to “the provisions of the Federal Constitution conferring on state legislatures, not state courts, the authority to make rules governing federal elections.”

...this is the opposite of what the U.S. Supreme Court has said — including in a 2015 decision holding that the Constitution’s reference to “the Legislature” means a state’s process of making laws, including a governor’s role in vetoing laws and courts’ role in interpreting laws. And put aside the oddity that this idea means that a ballot could count for Minnesota’s state elections but somehow not for federal ones, even though the same legislature enacted the rules for both of them and the ballot includes candidates for both sorts of offices. Even more fundamentally, this newfound notion that legislatures must, in utter isolation, set election rules alone is impossible to square with the basics of how law works in America....

In grade school, children learn that legislatures write the law, executives implement the law and courts interpret the law. To insist that, in the area of election administration alone, state legislatures must do it all themselves fetishizes the words “the Legislature” in the Constitution and strains them beyond recognition — because that’s never what legislatures do. For judges and justices suddenly to claim otherwise isn’t just a bad take on election law, but a bad take on law — period.

A right-wing federal district court judge will be having a hearing Monday on the petition in Texas to throw out 100,000 plus drive-through votes. This case could end up at US Supreme Court

If this weak ass shithead needs to count on a few thousand votes in Texas he’s fucked.

Every vote suppressed doesn’t count, and this is over 100,000 of em.

Afraid he will somehow apply this:

A novel legal theory is surging among conservative judges and justices. The notion is that, under the Constitution, only state legislatures — without any input from state executives or courts — may set the rules for presidential elections. This theory is clearly a misunderstanding of constitutional election law. But it’s actually worse than that: It fundamentally misapprehends how law itself functions

welp he dismissed case fortunately

They just appealed to the US 5th Circuit.

5th Circuit Court is psychotic but it'll just be appealed beyond them if they rule otherwise.

Chief Justice Roberts says striking down Obamacare, when Congress wouldn't, is "not our job."

— Steven Portnoy (@stevenportnoy) November 10, 2020

"...it is our duty"

but yes, i hope that is a good sign

it's not our job. However, if you all ask nicely...I'll do it just this once

Kavanaugh also making comments about severability that make it sound like they aren't yet ready to kill this thing.

"we can stab it with our steely knives, but we just can't *kill* the beast"

Well, yeah

if they don't strike it down, we're gonna hear a boatload of GOP whining about how "the democrats said the supreme court would take away our healthcare" while conveniently not mentioning how barrett votes on the matter

Breyer and Sotomayor are especially sharp in their questions.

if they don't strike it down, we're gonna hear a boatload of GOP whining

true, whining does seem to come by the boatloads these days

in boat parades, even

Aito, the worst justice.