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SCOTUS Catch-all | 2024-25 Term Ends

  • Thread starter Thread starter nycfan
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nycfan said:
The tone in opinions (but even moreso in concurrences and dissents) has become quite a bit sharper over the last decade and in particular the last 3-4 terms.
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Agree. And as for the idiotic zerohedge commentary, I get the concern about the power of district judges when they issue universal injunctions. But the only way Barrett’s comment about the imperial judiciary makes any sense is if you ignore the existence of the court on which she herself sits. That’s the difference between her concerns and Jackson’s. Her opinion is not just enabling an imperial presidency, but is also neutering the ability of the Supreme Court to exercise its own constitutional power in response to executive illegality. It’s an expansion of the power of the president from both ends.
 
nycfan said:
The tone in opinions (but even moreso in concurrences and dissents) has become quite a bit sharper over the last decade and in particular the last 3-4 terms.
Click to expand...
There's a specific subtext to this particular dispute not entirely apparent in the opinions, which I will describe later when I have a chance.
 
Ramrouser said:
No, it’s the 6 Justices (including Roberts) telling Brown to take her Critical Legal Studies reasoning and put it where the sun don’t shine.
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Nothing Jackson wrote has anything to do with CLS, as anyone who knows anything about CLS or frankly the law would know. You assume she's doing CLS because she's black. What she wrote, actually, is sort of the opposite of CLS.

This is also why the avowed white supremacists at zerohedge liked that "nuke from orbit." It was no nuke at all; it was a tepid response that didn't really answer any of her arguments and is frankly embarrassing coming from Amy Coney Barrett. But "Ketanji" is black so they revel in it, having no understanding of what is at stake.
 
Serious question for you, Ram, while you’re here. Are you comfortable with the massive expansions of executive power the Supreme Court has established over the last few terms? When a Democrat is back in the White House, will you be comfortable with him or her being only minimally constrained by the judicial process and being totally immune from any liability for his her acts while in office, no matter how lawless? I know this probably feels good to you guys right now while your own autocrat is in the White House, but do you think you’ll still like what this conservative court has done when it’s ours?
 


“Litman: The irony of this just spillth over—because of course, the Biden administration was subject to nationwide injunction after nationwide injunction in cases that didn’t warrant it. And they repeatedly asked the Supreme Court, “Guys, can you do something about this?” The Republican justices declined to do so.And now, all of a sudden—five months into the Trump administration—they realize, “Oh, nationwide injunctions? Yeah, they’ve basically been legally suspect all along.”How convenient, sirs and madam. And it is just gross in its obvious hypocrisy.”
 
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Jackson's dissent reads like it was haphazardly thrown together at the last minute. It's still excellently written and argued, but its structure is not as organized as I would otherwise expect and it isn't tight. The fact that she felt the need to write separately and didn't get the other liberals to join her further suggests that it was a last minute thing.

And the reason for it was the Supreme Court staying all the district court judgments against the Trump administration. This dissent isn't really about the birthright case. It's about the five stays the Supreme Court entered over the last month. In the last two cases, the executive didn't even point to Congressional authorization; it argued that it was acting according to its inherent executive authority to deport as it sees fit. Thus did the Trump administration argue that Congress could not limit its power, and the Supreme Court accepted that claim -- which is bullshit -- at least provisionally.

Well, in a world where Congress can not constrain the executive, that job falls to the Court. Otherwise, there are no checks on the executive. Someone has to restrain the president. If the Court will accept the president's contention that he has inherent executive authority to disregard the law, then it also has a concomitant obligation to ensure that the president at least obeys the constitution. Otherwise, we have no rule of law.

There are a couple of side notes here as well.

1. People who judge Justice Jackson on the color of her skin -- like our resident conservatives -- probably don't realize that she sees herself as an originalist. But she's not the Good German type of originalist as the majority. Consider that these "originalists" have now given the President monarchical powers. How is that originalism? Of all the things that we know the Founding Fathers DID NOT WANT, it was a monarch. So how is it possible for the originalist court to have arrived at the one place that everyone can agree the Founders did not want?

One answer is originalism is stupid and was never anything but a justification for abortion restrictions that metastasized into an uncontrolled monster. Another is that the unitary executive theory in particular is and always has been a load of horseshit.

Jackson offers a different diagnosis: the Court falls into line by understanding its role as deciding cases tiny issue by tiny issue without pausing to think about the larger consequences. So the majority says, "our role here is only to decide whether the universal injunction had an analogue in the practice of the English Chancery courts or the early Republic," it has already forfeited the game. In essence, the Court has reasoned itself piecemeal into upholding tyranny, and is thus helpless against the modern assertion of power. Of course the practice of the English Chancery Court did not protect itself against modern fascism. In 1690 it was impossible for the government to drive up in a van, throw people inside in silence or darkness, and then transport them hundreds of miles away to secret facilities. Absent reliable small arms fire, such a small crew could never assert control over a scene; it was an age, after all, of large slow armies that killed with thousands of inaccurate bullets, not precision semi-automatic fire.

Barrett has no response to this, which is why she chooses the longstanding approach of bullies everywhere: laughing at the speaker and hiding behind numerosity.

2. Barrett wrote something ridiculous, as she is wont to do, and was being called on it. Let's contemplate her assertion that

"JUSTICE JACKSON decries an imperial Executive while embracing an imperial Judiciary . . . In other words, [she finds it] unnecessary to consider whether Congress has constrained the Judiciary; what matters is how the Judiciary may constrain the Executive.

This is one of the most illogical and dangerous assertions in the history of the Supreme Court. It's the product of a mind trained to dwell on niggling provisions while ignoring the big concepts that apparently elude ACB and the majority. And it is THIS statement, not anything Justice Jackson wrote, that is lawless beyond comprehension.

A. First, at the outset: if the executive is ignoring Congress' limits on its power, why the hell should the Court feel itself bound by jurisdictional requirements set forth hundreds of years ago in a very different context? Basically, this is an Enabling Act: the Court isn't actually endorsing the fascism, but it's letting the fascism happen. The Executive has the military. Congress does not. Literally the only thing stopping the Executive is the rule of law. And if the rule of law disappears, then the court has no power to do anything. ACB has given away all of the Court's power to a tyrannical regime, which undermines her claim to be respecting the Court's proper jurisdiction. It would be the equivalent of arguing morality as the gravedigger is burying you alive.

B. Moreover, the total amount of power is fixed as between the branches of government. The question being presented in this case is how to divide up that power. The Framers saw it as a 33/33/33 type of distribution -- checks and balances for everyone. But that's not the way things have unfolded, and now we are looking at something more like 5/(95-X)/X where X is the power the judiciary claims. Maybe Congress' power is a 10 not a 5, or maybe it's almost zero as some commentators are saying. Doesn't matter to the point.

Anyone who thinks even slightly about this question will soon realize that an "imperial judiciary" is merely cutting into the executive's power. If the court asserts X = 20, then the Executive is still too strong but its power is still containable. But if the court asserts X = 2, because Congress long ago determined jurisdictional limits that are meaningless if the Executive can ignore the constitution, all that it has done is allow the executive to have 93%.

That is to say, ONLY an "imperial judiciary" can check an "imperial executive." ACB gets it completely and utterly wrong. The court asserting Article III authority to check Article II authority is not an increase in tyranny, as ACB implies. It's a bulwark against it.

3. The consistent theme across years now of SCOTUS bullshitting has been the fetishization of "separation of powers" to the exclusion of checks and balances. They seem not to grasp that separation of powers was never an end in itself; it was a means to the ultimate end of constraining the county's leader to lawfulness and not individual whims and discretion. The Framers divided the world into a) people who make the law; b) people who enforce the law; and c) people who declare the law. Note, in a cruel irony, ACB actually cites Marbury v Madison as a case about deference to the judiciary, which tells you all you need to know about her abilities as a con law professor (it's no wonder she couldn't name all the protections of the 1A).

And the pattern gets repeated now at great stakes. The Framers wanted the Judiciary to exceed its jurisdiction if necessary to fight the overreach of the executive. We know this because the overriding, overarching goal was to prevent tyranny.

It is nonsensical to think that the Framers would have thought that they could anticipate all forms of tyranny and properly analyze it. The Framers did not future courts to be asking, "do these remedies (or laws) closely match with the remedies that existed in 1789." After all, "it is a constitution we are expounding." The Framers wanted the co-ordinate branches to keep asserting themselves against overreaches of authority. Should it be necessary for the judiciary to fashion a new remedy for new assaults on freedoms, the Framers unambiguously wanted the court to do that.

This bolded paragraph is really what Jackson's dispute is about.
 
It should also be noted that the unitary executive theory and originalism were incubated in the context of abortion and civil rights laws. There is something like a 98% correlation between pro-life and anti-civil-rights views of judges. This could not happen by chance. It is because they have fashioned a judicial philosophy designed to stymie progress in those areas.

When people say conservatism is all about identity, it's because it actually is about identity. Mostly racial, historically, but all forms of identity these days.

Look at the drained-pool politics on display here. The Court is willing to sacrifice its entire power, to render itself but a pawn of fascist dictators, just to avoid letting women control their bodies and de facto (not merely de jure) racial equality. The "foreign policy" aspect of this deportation regime is comically post hoc and not remotely rationally defensible. But the Court accepts it at face value . . .why? They don't normally just accept the executive's justifications at face value. But here, the victims are brown skinned people from abroad.

This is why court reform has been so urgently needed, and the idiots who say, "Hurde durr nobody stole the seats" are so wrong. It doesn't matter if the appointments were all hunky-dory. The Supreme Court is obviously incapable of carrying out its constitutionally prescribed mission with these bozos wearing the robes. Saving the Republic requires what some of us have been saying for a decade.
 
superrific said:
Jackson's dissent reads like it was haphazardly thrown together at the last minute. It's still excellently written and argued, but its structure is not as organized as I would otherwise expect and it isn't tight. The fact that she felt the need to write separately and didn't get the other liberals to join her further suggests that it was a last minute thing.

And the reason for it was the Supreme Court staying all the district court judgments against the Trump administration. This dissent isn't really about the birthright case. It's about the five stays the Supreme Court entered over the last month. In the last two cases, the executive didn't even point to Congressional authorization; it argued that it was acting according to its inherent executive authority to deport as it sees fit. Thus did the Trump administration argue that Congress could not limit its power, and the Supreme Court accepted that claim -- which is bullshit -- at least provisionally.

Well, in a world where Congress can not constrain the executive, that job falls to the Court. Otherwise, there are no checks on the executive. Someone has to restrain the president. If the Court will accept the president's contention that he has inherent executive authority to disregard the law, then it also has a concomitant obligation to ensure that the president at least obeys the constitution. Otherwise, we have no rule of law.

There are a couple of side notes here as well.

1. People who judge Justice Jackson on the color of her skin -- like our resident conservatives -- probably don't realize that she sees herself as an originalist. But she's not the Good German type of originalist as the majority. Consider that these "originalists" have now given the President monarchical powers. How is that originalism? Of all the things that we know the Founding Fathers DID NOT WANT, it was a monarch. So how is it possible for the originalist court to have arrived at the one place that everyone can agree the Founders did not want?

One answer is originalism is stupid and was never anything but a justification for abortion restrictions that metastasized into an uncontrolled monster. Another is that the unitary executive theory in particular is and always has been a load of horseshit.

Jackson offers a different diagnosis: the Court falls into line by understanding its role as deciding cases tiny issue by tiny issue without pausing to think about the larger consequences. So the majority says, "our role here is only to decide whether the universal injunction had an analogue in the practice of the English Chancery courts or the early Republic," it has already forfeited the game. In essence, the Court has reasoned itself piecemeal into upholding tyranny, and is thus helpless against the modern assertion of power. Of course the practice of the English Chancery Court did not protect itself against modern fascism. In 1690 it was impossible for the government to drive up in a van, throw people inside in silence or darkness, and then transport them hundreds of miles away to secret facilities. Absent reliable small arms fire, such a small crew could never assert control over a scene; it was an age, after all, of large slow armies that killed with thousands of inaccurate bullets, not precision semi-automatic fire.

Barrett has no response to this, which is why she chooses the longstanding approach of bullies everywhere: laughing at the speaker and hiding behind numerosity.

2. Barrett wrote something ridiculous, as she is wont to do, and was being called on it. Let's contemplate her assertion that

"JUSTICE JACKSON decries an imperial Executive while embracing an imperial Judiciary . . . In other words, [she finds it] unnecessary to consider whether Congress has constrained the Judiciary; what matters is how the Judiciary may constrain the Executive.

This is one of the most illogical and dangerous assertions in the history of the Supreme Court. It's the product of a mind trained to dwell on niggling provisions while ignoring the big concepts that apparently elude ACB and the majority. And it is THIS statement, not anything Justice Jackson wrote, that is lawless beyond comprehension.

A. First, at the outset: if the executive is ignoring Congress' limits on its power, why the hell should the Court feel itself bound by jurisdictional requirements set forth hundreds of years ago in a very different context? Basically, this is an Enabling Act: the Court isn't actually endorsing the fascism, but it's letting the fascism happen. The Executive has the military. Congress does not. Literally the only thing stopping the Executive is the rule of law. And if the rule of law disappears, then the court has no power to do anything. ACB has given away all of the Court's power to a tyrannical regime, which undermines her claim to be respecting the Court's proper jurisdiction. It would be the equivalent of arguing morality as the gravedigger is burying you alive.

B. Moreover, the total amount of power is fixed as between the branches of government. The question being presented in this case is how to divide up that power. The Framers saw it as a 33/33/33 type of distribution -- checks and balances for everyone. But that's not the way things have unfolded, and now we are looking at something more like 5/(95-X)/X where X is the power the judiciary claims. Maybe Congress' power is a 10 not a 5, or maybe it's almost zero as some commentators are saying. Doesn't matter to the point.

Anyone who thinks even slightly about this question will soon realize that an "imperial judiciary" is merely cutting into the executive's power. If the court asserts X = 20, then the Executive is still too strong but its power is still containable. But if the court asserts X = 2, because Congress long ago determined jurisdictional limits that are meaningless if the Executive can ignore the constitution, all that it has done is allow the executive to have 93%.

That is to say, ONLY an "imperial judiciary" can check an "imperial executive." ACB gets it completely and utterly wrong. The court asserting Article III authority to check Article II authority is not an increase in tyranny, as ACB implies. It's a bulwark against it.

3. The consistent theme across years now of SCOTUS bullshitting has been the fetishization of "separation of powers" to the exclusion of checks and balances. They seem not to grasp that separation of powers was never an end in itself; it was a means to the ultimate end of constraining the county's leader to lawfulness and not individual whims and discretion. The Framers divided the world into a) people who make the law; b) people who enforce the law; and c) people who declare the law. Note, in a cruel irony, ACB actually cites Marbury v Madison as a case about deference to the judiciary, which tells you all you need to know about her abilities as a con law professor (it's no wonder she couldn't name all the protections of the 1A).

And the pattern gets repeated now at great stakes. The Framers wanted the Judiciary to exceed its jurisdiction if necessary to fight the overreach of the executive. We know this because the overriding, overarching goal was to prevent tyranny.

It is nonsensical to think that the Framers would have thought that they could anticipate all forms of tyranny and properly analyze it. The Framers did not future courts to be asking, "do these remedies (or laws) closely match with the remedies that existed in 1789." After all, "it is a constitution we are expounding." The Framers wanted the co-ordinate branches to keep asserting themselves against overreaches of authority. Should it be necessary for the judiciary to fashion a new remedy for new assaults on freedoms, the Framers unambiguously wanted the court to do that.

This bolded paragraph is really what Jackson's dispute is about.
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Man, I wish conservatives like Ram had the ability to understand what you wrote here.
 
lawtig02 said:
Man, I wish conservatives like Ram had the ability to understand what you wrote here.
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Calling ram arouser conservative is like calling Jesus Buddhist. You, me, and half of the posters in this community have more conservative in the tips of our p…inky toes…than that fool has in his entire body. An actual conservative would loathe the current authoritarian government and would revile federal overreach.
 
lawtig02 said:
Serious question for you, Ram, while you’re here. Are you comfortable with the massive expansions of executive power the Supreme Court has established over the last few terms? When a Democrat is back in the White House, will you be comfortable with him or her being only minimally constrained by the judicial process and being totally immune from any liability for his her acts while in office, no matter how lawless? I know this probably feels good to you guys right now while your own autocrat is in the White House, but do you think you’ll still like what this conservative court has done when it’s ours?
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I think Ram is comfortable in the belief that Dems will never be in power again, just like Orban in Hungary. Pubs are rapidly consolidating power and they have tilted the playing field of elections already (gerrymandering, voter suppression laws, putting election certifications in the hands of MAGAts etc) to favor them holding on to power. So he’s not at all worried. The coup is nearly complete. We the majority are all now living under minority rule.
 
Kingpin said:
I think Ram is comfortable in the belief that Dems will never be in power again, just like Orban in Hungary. Pubs are rapidly consolidating power and they have tilted the playing field of elections already (gerrymandering, voter suppression laws, putting election certifications in the hands of MAGAts etc) to favor them holding on to power. So he’s not at all worried. The coup is nearly complete. We the majority are all now living under minority rule.
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It's been complete for years. We are way beyond the "just hang on for the ride" portion of events.
 
…even the two other liberal Justices were too embarrassed to join her dissent.
lawtig02 said:
Serious question for you, Ram, while you’re here. Are you comfortable with the massive expansions of executive power the Supreme Court has established over the last few terms? When a Democrat is back in the White House, will you be comfortable with him or her being only minimally constrained by the judicial process and being totally immune from any liability for his her acts while in office, no matter how lawless? I know this probably feels good to you guys right now while your own autocrat is in the White House, but do you think you’ll still like what this conservative court has done when it’s ours?
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i’m a bit uncomfortable. As I said, I can see the benefit of a universal injunction to check the power of an executive exercising obviously unconstitutional authority like Biden’s student debt forgiveness. But the few activist district court judges grossly overplayed their hands, issuing 40 in approximately 130 days in largely 5 districts. The Supremes felt they had to put a check on them.
 
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