U.S. Supreme Court: Post-Ginsburg Edition

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.

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

they telegraphed that one

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

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.

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

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

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.

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.

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.

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.

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.

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

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

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

@man alive: https://www.reuters.com/legal/government/biden-finishes-2021-with-most-confirmed-judicial-picks-since-reagan-2021-12-28/

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.

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.

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

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.

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

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.

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.

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."

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.

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

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

more like HELL NOtomayor, amirite

gorsuch an asshole

"but mah rights"

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

Gorsuch a dick

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.

pure speculation but

https://www.lawyersgunsmoneyblog.com/2022/01/breyer-retirement-announcement-imminent

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)

Joe Manchin's Unemployed Nephew nominated to the bench

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, January 18, 2022 6:41 PM (yesterday) bookmarkflaglink

This would still surprise me -- she hasn't tanked Biden's other judicial nominees right? That's usually one of the few things the "moderates" will reliably vote with the party on.

I was initially being a little facetious, but honestly nothing surprises me at this point. She does seem to wait for big ticket items to go full villain mode though. Hoping something really bad happens to her tbh!

nominate two justices for every one that retires IMO

do it like that west wing episode

you prefer that one? wouldn't the other one be better?

Only Justice Clarence Thomas said publicly that he would have granted former President Donald Trump's request to block the document handover from the National Archives to the House select committee. No other justices made an objection public.

https://www.washingtonpost.com/politics/courts_law/supreme-court-trump-january-6/2022/01/19/a432dab4-797d-11ec-83e1-eaef0fe4b8c9_story.html

in oral arguments the other day Justice Gorsuch referred to "the so-called separation" of church and state

Heh, I would've probably said the same thing, though in a different context.

JFC, talking about originalism, wtf else could the establishment clause mean BUT a separation of church and state?

"There is no such thing as originalism" otm. It's all pretext.