U.S. Supreme Court: Post-Ginsburg Edition

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.

https://www.youtube.com/watch?v=OOWO--z1S8A

https://www.youtube.com/watch?v=uff0h-zHuao

NEW: Supreme Court deals fresh rebuff to abortion providers, refuses to order Texas case sent back to trial judge who once blocked law. Three liberal justices dissent. https://t.co/zHvuJiycZ6

— Greg Stohr (@GregStohr) January 20, 2022

January 21st, 1975: SCOTUS rules it unconstitutional for states to deny women the right to serve on juries

Wow, didn't realize it was that late

I'm always shocked when I encounter stuff like that, bullshit that lasted so much longer than I realized. Like, for example, how many prominent colleges did not accept women until the 1970s.

Mississippi ratified the Thirteenth Amendment in fucking 2013.

A little light reading for the weekend.

https://www.newyorker.com/magazine/2022/01/31/is-ginni-thomas-a-threat-to-the-supreme-court

It's a very long and infuriating piece that will surprise no one, but it is damning and you should read it.

I got about 1/3 of the way in and I’d had enough. So goddamn corrupt.

https://www.huffpost.com/entry/stephen-breyer-retiring-supreme-court_n_6063b889c5b6d34efbc6616f

Which Manchin relative should replace him?

this guy

Kamala Harris is only a year older than Brett Kavanaugh. She'd be on the court twenty years and no longer be a headache for Biden while being a reliably pro-business, pro-leftwing social policy vote.

— Erick Erickson (@EWErickson) January 26, 2022

lol two seconds later they have Hillary replacing Kamala as Veep and Biden resigning

Nauseating even thinking about the delay tactics that are in store.

do they really need to? they've already got 6.

I dunno, think about it, why is 6 afraid of 7? Because 7 8 9.

"reliably pro-business, pro-leftwing social policy vote." I just threw up in my mouth.

I feel...optimistic?

As to his replacement: If all Democrats hang together – which I expect they will – they have the power to replace Justice Breyer in 2022 without one Republican vote in support.

— Lindsey Graham (@LindseyGrahamSC) January 26, 2022

That said, I did stop to check if there were any Democratic senators in states with Republican governors where state laws allow the governor to fill a senatorial vacancy on a non-interim basis (i.e., no special election) and with no requirement to appoint someone of the same party as the vacating senator.

There are three: Sherrod Brown (OH), Maggie Hassan (NH), and Jeanne Shaheen (NH), all of whom are under 75 years old and, as far as I know, in good health.

Campos a week later:

(1) I was told last week by somebody in the know that this was likely to happen. Today this same person tells me that an important component of Breyer’s decision and its timing is the nonsense that’s gone down at the SCOTUS in the last few weeks, specifically the handling of the Texas abortion litigation, and the mask kerfuffle. (Good job Neil Gorsuch!).

(2) The big question of course is whether the GOP’s evil but not-insane wing, led by Master of the Dark Arts Mitch McConnell, will take this as an opportunity to score cheap bipartisan comity points with the ever-clueless “liberal” establishment, by going along with the inevitable.

The answer to this question, of course, turns largely on whether the inevitable continues to look truly inevitable. Will there be the conservative equivalent of your typical “as a liberal Democratic law lady I vouch for Justice Kavanaugh’s brilliance and car pooling skills?” Again, there will be some of that iff the nomination looks like a fait accompli.

This in turn brings us to

(3) I’m putting the odds of a fake scandal, and probably a fake sex harassment scandal, erupting over the nominee as “much higher than all but the most cynical observers think.” For example I see some cult zealot or three claiming that the nominee made him/them “uncomfortable” in some amorphous way, by [insert bizarre and totally unverifiable or refutable set of accusations here]. Listen to me now and believe me later is what I’m saying. Everything with these people is payback, plus a lot of them are genuinely crazy.

(4) Of course none of this matters if every Democrat senator makes it absolutely clear at all times that they are voting for the nominee. If that happens, all the bullshit from the Scream Machine — and there will be a lot, starting with “whispers” about how this woman of color just isn’t very smart, because you know how affirmative action works — won’t be able to get traction. But if there’s anything less than a consistent united front (looking at you, Krysten), look out.

Nominate four, seat four and when a lawsuit challenging the legality occurs, bring it all the way to the 6-6 court

Nice thought. Chances are all of the new liberal judges would recuse themselves.

Certiorari "before judgment" is supposed to be an exceptionally rare practice through which #SCOTUS bypasses courts of appeals to expedite full review of merits cases. From Aug. 2004–Jan. 2018, #SCOTUS granted *0* such petitions. Today’s grant in the UNC case is the *15th* since.

— Steve Vladeck (@steve_vladeck) January 24, 2022

Trump nominated Amy Coney Barrett 3 days after RBG died! and she was confirmed 27 days later. Biden today just promised to nominate someone by the end of February, a month from now

I know the timelines for the two nominations are different, but it would be nice to see some fire around this from the White House

I expect they're figuring out a strategy to blunt the intense negative media campaign against any black woman they nominate. They're probably busy testing the water with Democratic senators since they notoriously can't afford to lose even one. Maybe approaching a couple of Republican senators, too, in case they can bust one loose from Mitch's grip. Nothing comes easy these days.

https://img.buzzfeed.com/buzzfeed-static/static/2022-01/27/20/asset/0993aa7da167/sub-buzz-651-1643315598-12.jpg?downsize=700%3A%2A&output-quality=auto&output-format=auto
Boop.

there was an intense negative media campaign over Amy Coney Barrett and they just did it. and nobody is talking about it anymore