US Supreme Court Discussions

[Voronwë the Faithful]

They ruled on limited standing grounds, but it is still a win. We are starting to see some of the limits of the conservative tilt of the Supreme Court

As Steve "Shadow Docket" Vladeck says:

and


Also, from Raffi Melkonian


ETA: Also this:


And back to Vladeck:

[N.E. Brigand]

The Intercept reports: "Samuel Alito's Wife Leased Land to an Oil and Gas Firm While the Justice Fought the EPA."

On the one hand, I get how conservatives may see this as just someone engaged in normal business activity:

A year ago this month, Martha Ann Bomgardner Alito decided to see if a 160-acre plot of land in Grady County, Oklahoma, would produce. In a lease filed with the Grady County clerk, the wife of Supreme Court Justice Samuel Alito entered into an agreement with Citizen Energy III for revenue generated from oil and gas obtained from a plot of hard scrabble she inherited from her late father. It is one of thousands of oil and gas leases across Oklahoma, one of the top producers of fossil fuels in the United States.

Last year, before the lease was activated, a line in Alito’s financial disclosures labeled “mineral interests” was valued between $100,001 and $250,000. If extraction on the plot proves fruitful, the lease dictates that Citizen Energy will pay Alito’s wife 3/16ths of all the money it makes from oil and gas sales.

On the other hand, if a liberal Supreme Court justice were found to be have financial dealings with the World Wildlife Foundation while deciding an EPA case, I think Republicans would be howling. As the article notes, Alito had recused himself in the past from a number of other cases that could have conflicts of interest due to the many stocks he owns.

[Voronwë the Faithful]

More than anything else, it is the sheer number of conflicts (particularly with regard to Thomas and Alito, but not limited to them) that is concerning.

[Voronwë the Faithful]

I'll put this here, though the most immediate impact will be on the 2024 election.

[N.E. Brigand]

I'll put this here, though the most immediate impact will be on the 2024 election.

Kyle Griffin: "The Supreme Court just rejected the 'independent state legislature' theory."

Harry Litman: "Bullet dodged. ... Court ... hold[s] ... Elections Clause does NOT vest exclusive and independent authority in state legislatures ... regarding federal elections.."

Whew.

Elie Mystal says that Justice Clarence Thomas is correct to write that this case should have been turned away for being moot. He also writes:

Anyway, the upshot is that between Milligan and Moore v. Harper... WE GET TO HAVE A DEMOCRACY... for another day at least. For another election, let's hope.

This was a term SCOTUS could have basically destroyed democratic elections and... they didn't. Thomas and Alito wanted to.

I just want to say again that it is important that we do not *WASTE* this opportunity at democratic self-government the Court has by a thin margin allowed us to keep

Later this week we'll see decisions on affirmative action, student loans, and more to close out the term.

[N.E. Brigand]

What a weird breakdown in Mallory v. Norfolk Southern, a 5-4 decision with Neil Gorsuch, Clarence Thomas, Samuel Alito, Sonia Sotomayor, and Ketanji Brown Jackson in the majority vs. Amy Coney Barrett, John Roberts, Elena Kagan, and Brett Kavanaugh in the minority.

[Voronwë the Faithful]

Elie Mystal says that Justice Clarence Thomas is correct to write that this case should have been turned away for being moot. He also writes:

Anyway, the upshot is that between Milligan and Moore v. Harper... WE GET TO HAVE A DEMOCRACY... for another day at least. For another election, let's hope.

This was a term SCOTUS could have basically destroyed democratic elections and... they didn't. Thomas and Alito wanted to.

I just want to say again that it is important that we do not *WASTE* this opportunity at democratic self-government the Court has by a thin margin allowed us to keep

The sense that I had is that most legal observers expected that the court would punt on Moore on the grounds that it was moot. The sense that I had is that Roberts really wanted to put the nonsense of the 'independent state legislature' theory" to rest.

I'm not going to comment about Mallory, because really, what can be said?

[Voronwë the Faithful]

Moore is certainly an important case, but I think Judge Luttig is being a bit hyperbolic here.

[N.E. Brigand]

Moore is certainly an important case, but I think Judge Luttig is being a bit hyperbolic here.

Also it arguably represents, as this commenter notes, a shift rightward in what's considered to even be acceptable for discussion:



Sort of like the Court giving Flat Earthers a fair hearing.

[Voronwë the Faithful]

This is not a surprise, but still disappointing.

[N.E. Brigand]

I'm only six pages into the 237-page decision. So far nothing Roberts has written seems unreasonable, but I doubt he'll ever grapple with the real issues. George Conway, currently much read on the left because of his harsh criticisms of Donald Trump, said the other day he hoped for this outcome because he considers affirmative action to be a kind of discrimination. (Edited to note that he reaffirmed his opinion in light of today's decision.) What neither of them is considering, I think, is that until people of all races, sexes, genders, etc. have an approximately equal proportional distribution in all walks of life, then discrimination must be happening.

In other words, I think not having an affirmative action plan in place violates the 14th amendment -- but unsurprisingly Roberts is arguing the opposite.

[Voronwë the Faithful]

Interesting perspective from Asha Rangappa.

[N.E. Brigand]

I think it's funny that Chief Justice Roberts's ruling exempts military academies. Apparently they can practice affirmative action, because doing so is good for military cohesion. Or as Justice Jackson writes, the Court's conservatives care about "success in the bunker, not in the boardroom." Some folks are proposing that schools focus on neighborhoods as a proxy for racial diversity, but there are already lawsuits trying to block that option too. And one of Asha Rangappa's respondents points out that some states already the "holistic" workarounds she proposes. Another, Ed Whelan (who is still being cited by lots of people, including George Conway, despite his having tried to implicate someone else in what is thought to be Brett Kavanaugh's sexual assault against Christine Blasey Ford), argues that what Rangappa suggests would be improper deception.

One thing that needs to happen is the end of legacy admissions. That would free up slots for a more diverse student body!

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Edited to add a quote from Elie Mystal: "Students who think their intellectual 'merit' can be captured on a multiple choice test, like well-trained dolphins who know exactly which hoops to jump through, have gotten what they wanted." He's right! And yet this doesn't undercut Chief Justice Roberts's point that admissions criteria which are not measurable can't really be adjudicated. (Possibly Mystal does address this point elsewhere in his piece.)

Edited again to note that Mystal seems not to directly address this argument of Roberts, but boy does he tear into Justice Thomas:

Again, I almost get it. I almost see where he’s coming from. I remember coming home from elementary school one day and declaring to my Black and proud parents that I “couldn’t be” Black. I had heard kids at my predominately white Catholic elementary school saying that Black people were not “clean,” and I explained to my parents that this made me not Black because I took a bath every day, and I didn’t want to be associated with people who didn’t wash. Obviously, my parents were horrified. Obviously, they pulled me out of that school the next year and put me into a predominately Black public school. Obviously, I learned that not everything white people say is true. But Thomas is the guy who never learned: He never figured out how to disregard what white people say about us. Learning how to ignore white folks and their stupid racial theories while living your full life is pretty much the final test towards emancipation, and it’s one that Thomas seems to have flunked for his entire professional life.

And there's lots more where that came from!

Edited on more time to note that Mystal eventually does address aspects of Roberts's opinion:

What this means is the entire argument against affirmative action is based on the feelings of some students (and their parents) that they would have gotten into these schools if the schools admitted fewer Black people, but that too is a thin argument. Getting rid of affirmative action will neither require schools to admit more AAPI students nor force them to weigh so-called “merit-based” factors more heavily. In California, which ended its affirmative action policies over 25 years ago, the studies show that, without affirmative action, Black enrollment plummets, Latino enrollment plummets, AAPI enrollment goes up a little bit, and whites flood the remaining opportunities. ...

Roberts writes that one of the reasons affirmative action fails is because universities do not adequately distinguish between different kinds of AAPI students—for instance, between South Asians and East Asians. Having this white guy tell us that affirmative action is unconstitutional because the AAPI category is too broad is like Homer Simpson saying he doesn’t go to gyms because they overwhelm him with exercise options. ...

But the conservatives did not adopt originalism for its good-faith arguments. They’re not ending affirmative action to help Asian American students get into Harvard or UNC. The conservative majority is ending affirmative action because college admissions are maybe the only place in American life where being white isn’t an automatic benefit to the possessor of precious white skin.

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Meanwhile one of the big cases yet to be decided, 303 Creative v. Elenis, may be based in part on fraudulent court filings.

A Colorado website designer named Lorie Smith (303 Creative is the name of her company) had never designed a site for a wedding, had never indicated that she would object to doing so for same-sex couples, and had never been asked to do so by a same-sex couple, but in 2016 she filed a lawsuit asking a court to block the portion of Colorado's anti-discrimination law (Aubrey Elenis leads the state's civil rights office) that theoretically could force her to do so if anyone ever asked. She later amended her suit with an actual example of such a request, which she says was submitted to her just after she filed it: someone named Stewart said he or she was getting married to someone named Mike and wanted asked for her design a website for that.

But it turns out, a reporter looked up Stewart, seven years later, and found that Stewart lives in California not Colorado, says that was already a husband and father in 2016, and says that he never submitted any such request to Smith. Apparently no reporter reached out to Stewart before now. The reporter does say that Stewart could be lying.

[N.E. Brigand]

Edited to add a quote from Elie Mystal: "Students who think their intellectual 'merit' can be captured on a multiple choice test, like well-trained dolphins who know exactly which hoops to jump through, have gotten what they wanted." He's right! And yet this doesn't undercut Chief Justice Roberts's point that admissions criteria which are not measurable can't really be adjudicated. (Possibly Mystal does address this point elsewhere in his piece.)

Edited again to note that Mystal seems not to directly address this argument of Roberts, but boy does he tear into Justice Thomas ...

Edited on more time to note that Mystal eventually does address aspects of Roberts's opinion:...

Matt Yglesias argues that everyone is missing the point: "I mostly think you see your way to a clearer view of the whole situation if you think of elite universities as revenue-seeking rather than justice-seeking operations ... the whole point of top universities is to be elitist, hierarchical, and exclusionary"; they merely pretend otherwise.

He also encourages progessives to let the matter rest for political reasons: "Because the Dobbs decision and abortion rights will feature heavily in Democrats' 2024 campaign, I expect there will be considerable pressure to fold this decision into a broader critique of right-wing judicial overreach. It's important to understand that, unlike abortion rights, affirmative action is unpopular." Of course, sometimes you have to do unpopular things because they're right.

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Edited to add: "I Decided To Become A Slave So One Day My Descendants Could Steal College Admissions Spots."

And: "Harvard Admits First White Student."

And:



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Edited once more to note Matt Bruenig's take on today's decision, which is rather like Asha Rangappa's.

I'm also tickled by Bruenig's thoughts on Supreme Court decisions generally: "The constitution is extremely brief and vague. It is simply *impossible* to do constitutional review in any other way [than "just slinging takes"]. The text being interpreted here is, in its entirety, 'deny to any person within its jurisdiction the equal protection of the laws.' What does that mean? Judicial pronouncements on the constitution are not merely bad. They are impossible. They are absurd."

[N.E. Brigand]

The Supreme Court just blocked 26 million people from receiving about $20,000 each?

[Voronwë the Faithful]

Plus gave a green light to discriminate against LGBTQ+ people.

[Voronwë the Faithful]

Going back to yesterday's affirmative action decision.

[Frelga]

Plus gave a green light to discriminate against LGBTQ+ people.

Based on a made up, hypothetical scenario.

[Voronwë the Faithful]

Easy affirmative action fix: give positive weight to applications from descendants of "freedmen." Justice Thomas says "freedmen" is a race-neutral term.

[River]

I will be curious to see the fate of 303 Creative as a business. 303 is one of the area codes for the Denver metro and the area is pretty socially liberal. This particular business has made itself a national name because the owner went to the Supreme Court over a thing that appears to have happened in her imagination and came away with an anti-LGBTQ ruling. I wouldn't be surprised if discriminating heterosexual clients decide to just avoid her business.