U.S. Supreme Court: Post-Ginsburg Edition

Regarding the EPA decision, the major questions doctrine seems like a legitimate question to ask, following from the separation of powers. Roberts may be guilty of using incrementalism as a magic escape hatch, but I sometimes wonder if he is conscious of the reception of expert opinion. Is he pragmatic, institutionally grandiose, aware of anti-intellectualism in the 21st C., ... ?

But doesn't the investment in new sectors delay benefits, and would decision makers expect to be around to reap the benefits and to profit personally?

Government subsidies could provide the bridge to reduce the cost (and the delayed gratification) of the investment, so it is still plausible that Big Business could switch if anyone is still in touch with reality.

Have you read Kagan's dissent? It makes it clear how aggressive and results-oriented the application of this supposed doctrine is in this case. In the section of the law in question, Congress gave the agency the power to make these calls. The Court is, by fiat, deciding "ehhh.... no it didn't."

I should read the dissent because the parts that were quoted in the NYT were memorable. Thanks.

I agree that it seems to have been a misapplication (if the doctrine itself is valid and worth retaining now and in the future, based on the little that I know of legal theory) and that the most likely interpretation is that Roberts made his decision based on outcome. (I still wonder about his motives and his rationale.)

His motives and his rationale are continuing to fatten the wallets of the Koch brothers and their brethren.

Does this work or not anymore if ever -- id : legislative :: ego : executive :: super-ego : judicial ?

Like I know you’re trying to be reasonable but the myth that Roberts is the reasonable one is dangerous. Every single one of the conservatives on the court has no regard for human lives except those of the white, rich, donor class that they serve.

Roberts may not be the case to consider, but I think there has to be a premise of common humanity or everything falls apart.

Roberts looks reasonable b/c the three Trump nominees pushed the Court further right and finally gave Alito and Thomas working majorities.

xp to youn

Roberts may not be the case to consider, but I think there has to be a premise of common humanity or everything falls apart.

I wouldn't worry about the details of the legal basis of these decisions. The result is all that matters to them and they won't hesitate to contradict that basis if they need to for a future result.

I think there has to be a premise of common humanity or everything falls apart.

Oh good, we've got two treeships now.

🖕

You’re such a miserable person it’s incredible to me you even have the energy to post.

Good morning!

I’ve never been a roberts defender or a republican equivocator. I consider this court to be rogue and murderous.

I think I got off on a tangent with Roberts. Regarding the EPA decision, I had hoped to learn more about your thoughts on expert opinion and independent federal agencies and more about the past usage of the major questions doctrine, which seems to have come about as a reaction to the Chevron doctrine. (That these precedents have come about so recently and the question under dispute seem to point to society in which expertise and decision making are increasingly specialized and direct participation and engagement unlikely.)

and direct participation and engagement unlikely

This is probably irrelevant because these are probably not the kinds of decisions everyone needs to make and where it's better to trust an expert, but the major questions doctrine is contesting this based on a mistrust of expert opinion?

this is the exact area where i think Kagan's dissent could clarify things for you. the majority opinion is in effect a major expansion of what counts as a "major question." previously this was described as requiring that the agency went way outside its normal area of operations, and/or would the regulation amount to some enormous change to the structure of the economy --- for example the FDA outlawing cigarettes as a poisonous drug, which (whatever the merits of the idea) is clearly not what Congress empowered the FDA to do, and would also shutter an industry at one blow.

the Clean Power plan doesn't rise to either of these - Congress clearly empowered the EPA to regulate power plant emissions, and the plan's impact would not be remotely earthshaking. as Kagan points out, the plan was in fact blocked by the Trump administration and then the power industry exceeded its goals anyway. so now "major questions" means "regulates something i wish they wouldn't."

Kagan is good on the administrative state and is the libs' best explainer, yeah.

What is even wilder about this case is that it was not an actual case or controversy. The Court intentionally took a matter that was not active to further its agenda of dismantling the regulatory state.

Those Koch dollars are bearing rich fruit.

some are suggesting that the deeper purpose, since the CPP was already kaputt, was to establish that if a regulatory agency, EPA or otherise, drifts into regulating things that 6 conservative justices don't like, they can now declare that the agency is addressing a "big question" (defined as "i know it when my racist piece of shit ass sees it"), they can unilaterally shut it down

that could be true, although I wonder why they wouldn't just do that through a case actually challenging something they want to shut down, i.e. why do that through a challenge to something not active when they could just do it through a challenge to something active? I guess we will find out soon enough anyway.

That seems to be what the decision means. The epa is empowered by congress to protect the environment and regulating emissions is part of that. Their operation is overseen by the executive. The rationale of the majority opinion here is laughable.

I think it's a flex on the part of the Court. Standing is a basic requirement of federal court jurisdiction. They're expanding the rules to suit their agenda.

Plus, as I said, this is Koch money at work. This question is of paramount importance to the fossil fuel industry.

Laughable and yet We. Would. CRY. xp

that could be true, although I wonder why they wouldn't just do that through a case actually challenging something they want to shut down, i.e. why do that through a challenge to something not active when they could just do it through a challenge to something active? I guess we will find out soon enough anyway.

The majority sees that the President and the slim majority in the Senate aren’t passing anything now, and they see that lower courts have held up regs , so they chose to do it this way, because they don’t want to wait. They arrogantly believe they know what’s allowed so why not to them do it this way.

cool

EXCLUSIVE: Supreme Court justices — Clarence Thomas, Samuel Alito, and the late Antonin Scalia — have prayed together with evangelical leaders whose bosses were bringing cases and arguments before the high court. https://t.co/J4OiaawsX8

— Rolling Stone (@RollingStone) July 6, 2022

"raising questions about impartiality"

Alito has ordered new robes for next year's term

https://www.prospecthillco.com/wp-content/uploads/2017/02/4c19511e99858164f4e6f01d6eb73c4bdf486473-1.jpg

Looks like Gorsuch's stunt double.

just found out the new neighbor across the street is in the federalist society

i assume catholic university just pumps these dudes out

Heez! You live in Brookland?

I still cannot believe that one of the art mentors of my youth did a hard right turn and is now a senior editor at the Federalist. Total bummer.

I am hardly Mr. Sunshine-and-Lollipops when it comes to my attitude toward people in general, but it is hard for me to fathom the depth of contempt for humankind required to embrace the Federalist Society's ideology. One can only wish they'd turn that contempt exclusively upon themselves and leave the rest of us alone.

No but close by just over the Maryland line! I get my weed in brookland

My wife did some internet sleuthing bc ups dropped their j crew box on our porch lol. This is the type of dude who always has dockers on and a button down shirt with sleeves rolled up

When I was in law school (mid 90s), the school's chapter of the Federalist Society was pretty much a frat--literally. I don't think there was a single female student in their ranks, at least not one who would admit it.

Protestors at Morton's Steakhouse protested Brett Kavanaugh's presence.

Apparently, the Justice had to leave by the back door without dessert. The horror!

Waiter shoulda put feces in his potatoes

“Our special potatoes for you, Sir”

Poor guy. He left before his soufflé because he decided half the country should risk death if they have an ectopic pregnancy within the wrong state lines. It’s all very unfair to him.

The least they could do is let him eat cake 🍰 https://t.co/5Y3b1TIW1N

— Alexandria Ocasio-Cortez (@AOC) July 8, 2022

https://podcasts.apple.com/us/podcast/the-daily/id1200361736?i=1000569124695

While this may seem like the last person whose voice you want to hear right now, this was actually a fascinating look at how the right used a very disciplined incremental legal strategy to get to today (and will continue to do so), which made me start thinking about what kind of incremental strategies could be used for the better.

I know this isn't going to seem that meaningful to most people btw, but I was talking to my extremely centrist boss (like the kind of guy who will talk about the loony left, mostly votes dem but might have gone for a "moderate" republican), and he was 100% outspokenly in favor of expanding the Supreme Court. Limited data point, but I found that pretty interesting, maybe encouraging.

Also, I have increasingly been thinking this is something we should be thinking of as a long-term goal, that should just get persistently messaged as a set up for if/when democrats have the power and will to do it even if they don't today. And people need to stop calling it "court packing" which sounds bad and devious.

I haven’t heard anyone call it court packing since the 1930s but I’ll let FDR know.

Did you consider googling "court packing" before posting that?

what have they been calling it since the '30s? Court growth patterns?