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Groovelord Neato posted:if they're gonna be a shithead can they at least be consistent. they can't say the omission used animus in its decision to strike it down and then not use the same reasoning with trump. scalia used to do that poo poo but at least he had the excuse it was in different years. this was a loving week apart.
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Jun 26, 2018 15:44
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Syzygy Stardust posted:Was Obama (or FDR...) not allowed to refuse visas from countries he bombed, because that demonstrated animus? you are a massive racist, shut the gently caress up
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Jun 26, 2018 15:45
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Syzygy Stardust posted:Was Obama (or FDR...) not allowed to refuse visas from countries he bombed, because that demonstrated animus? shut the gently caress up idiot.
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Jun 26, 2018 15:50
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Taken from the California thread: https://mobile.twitter.com/mjs_DC/status/1011611692978130944
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Jun 26, 2018 15:58
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Green Crayons posted:OH WAIT LET'S DO WRITING STYLES Does Neil Gorsuch write like a sixth grader excited about his eight-grade reading level? This is the nub of the dispute now before us...
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Jun 26, 2018 16:06
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Lol imagine thinking that Thomas is a better writer than Breyer.
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Jun 26, 2018 16:08
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 Opinions (in a 5-4 Hellscape)! NATIONAL INSTITUTE OF FAMILY AND LIFE ADVOCATES, DBA NIFLA, ET AL. v. BECERRA, ATTORNEY GENERAL OF CALIFORNIA, ET AL. Holding: The California Reproductive Freedom, Accountability, Comprehensive Care, and Transparency Act (FACT Act) requires clinics that primarily serve pregnant women to provide certain notices. Cal. Health & Safety Code Ann. §123470 et seq. (West 2018). Licensed clinics must notify women that California provides free or low-cost services, including abortions, and give them a phone number to call. Unlicensed clinics must notify women that California has not licensed the clinics to provide medical services. The question in this case is whether these notice requirements violate the First Amendment. ... [The Court holds that they likely do.] ... The First Amendment, applicable to the States through the Fourteenth Amendment, prohibits laws that abridge the freedom of speech. When enforcing this prohibition, our precedents distinguish between content-based and content-neutral regulations of speech. Content-based regulations “target speech based on its communicative content.” Reed v. Town of Gilbert, 576 U. S. ___, ___ (2015) (slip op., at 6). As a general matter, such laws “are presumptively unconstitutional and may be justified only if the government proves that they are narrowly tailored to serve compelling state interests.” … The licensed notice is a content-based regulation of speech. By compelling individuals to speak a particular message, such notices “alte[r] the content of [their] speech.” Here, for example, licensed clinics must provide a government-drafted script about the availability of state-sponsored services, as well as contact information for how to obtain them. … Although the licensed notice is content based, the Ninth Circuit did not apply strict scrutiny because it concluded that the notice regulates “professional speech.” 839 F. 3d, at 839. Some Courts of Appeals have recognized “professional speech” as a separate category of speech that is subject to different rules. … This Court’s precedents do not recognize such a tradition for a category called “professional speech.” This Court has afforded less protection for professional speech in two circumstances—neither of which turned on the fact that professionals were speaking. First, our precedents have applied more deferential review to some laws that require professionals to disclose factual, noncontroversial information in their “commercial speech.” Second, under our precedents, States may regulate professional conduct, even though that conduct incidentally involves speech. But neither line of precedents is implicated here. … The notice in no way relates to the services that licensed clinics provide. Instead, it requires these clinics to disclose information about state-sponsored services— including abortion, anything but an “uncontroversial” topic. Accordingly, Zauderer has no application here. … The licensed notice at issue here is not an informed-consent requirement or any other regulation of professional conduct. The notice does not facilitate informed consent to a medical procedure. In fact, it is not tied to a procedure at all....The licensed notice regulates speech as speech. … In sum, neither California nor the Ninth Circuit has identified a persuasive reason for treating professional speech as a unique category that is exempt from ordinary First Amendment principles. We do not foreclose the possibility that some such reason exists. We need not do so because the licensed notice cannot survive even intermediate scrutiny. California asserts a single interest to justify the licensed notice: providing low-income women with information about state-sponsored services. Assuming that this is a substantial state interest, the licensed notice is not sufficiently drawn to achieve it. … If California’s goal is to educate low-income women about the services it provides, then the licensed notice is The notice applies only to clinics that have a “primary purpose” of “providing family planning or pregnancy-related services” and that provide two of six categories of specific services.…The FACT Act also excludes, without explanation, federal clinics and Family PACT providers from the licensed-notice requirement. … Further, California could inform low-income women about its services “without burdening a speaker with unwanted speech.” Most obviously, it could inform the women itself with a public-information campaign. … Even if California had presented a non-hypothetical justification for the unlicensed notice, the FACT Act unduly burdens protected speech. The unlicensed notice imposes a government-scripted, speaker-based disclosure requirement that is wholly disconnected from California’s informational interest. It requires covered facilities to post California’s precise notice, no matter what the facilities say on site or in their advertisements. And it covers a curiously narrow subset of speakers. … We hold that petitioners are likely to succeed on the merits of their claim that the FACT Act violates the First Amendment. We reverse the judgment of the Court of Appeals and remand the case for further proceedings consistent with this opinion. Lineup: Thomas, joined by Roberts, Kennedy, Alito, and Gorsuch. Concurrence by Kennedy, joined by Roberts, Alito, and Gorsuch. Dissent by Breyer, joined by Ginsburg, Sotomayor, and Kagan. Notes From Other Opinions: Kennedy (concurring): I join the Court’s opinion in all respects. This separate writing seeks to underscore that the apparent viewpoint discrimination here is a matter of serious constitutional concern. See ante, at 6, n. 2. The Court, in my view, is correct not to reach this question. It was not sufficiently developed, and the rationale for the Court’s decision today suffices to resolve the case. And had the Court’s analysis been confined to viewpoint discrimination, some legislators might have inferred that if the law were reenacted with a broader base and broader coverage it then would be upheld. It does appear that viewpoint discrimination is inherent in the design and structure of this Act. This law is a paradigmatic example of the serious threat presented when government seeks to impose its own message in the place of individual speech, thought, and expression. For here the State requires primarily pro-life pregnancy centers to promote the State’s own preferred message advertising abortions. Breyer (dissenting): The petitioners ask us to consider whether two sections of a California statute violate the First Amendment. The first section requires licensed medical facilities (that provide women with assistance involving pregnancy or family planning) to tell those women where they might obtain help, including financial help, with comprehensive family planning services, prenatal care, and abortion. The second requires unlicensed facilities offering somewhat similar services to make clear that they are unlicensed. In my view both statutory sections are likely constitutional, and I dissent from the Court’s contrary conclusions. … Because much, perhaps most, human behavior takes place through speech and because much, perhaps most, law regulates that speech in terms of its content, the majority’s approach at the least threatens considerable litigation over the constitutional validity of much, perhaps most, government regulation. Virtually every disclosure law could be considered “content based,” for virtually every disclosure law requires individuals “to speak a particular message.” See Reed v. Town of Gilbert, 576 U. S. ___, ___ (2015) (BREYER, J., concurring in judgment) (slip op., at 3) (listing regulations that inevitably involve content discrimination, ranging from securities disclosures to signs at petting zoos). Thus, the majority’s view, if taken literally, could radically change prior law, perhaps placing much securities law or consumer protection law at constitutional risk, depending on how broadly its exceptions are interpreted. Many ordinary disclosure laws would fall outside the majority’s exceptions for disclosures related to the professional’s own services or conduct. These include numerous commonly found disclosure requirements relating to the medical profession. See, e.g., Cal. Veh. Code Ann. §27363.5 (West 2014) (requiring hospitals to tell parents about child seat belts); Cal. Health & Safety Code Ann. 4 NATIONAL INSTITUTE OF FAMILY AND LIFE ADVOCATES v. BECERRA BREYER, J., dissenting §123222.2 (requiring hospitals to ask incoming patients if they would like the facility to give their family information about patients’ rights and responsibilities); N. C. Gen. Stat. Ann. §131E–79.2 (2017) (requiring hospitals to tell parents of newborns about pertussis disease and the available vaccine). These also include numerous disclosure requirements found in other areas. See, e.g., N. Y. C. Rules & Regs., tit. 1, §27–01 (2018) (requiring signs by elevators showing stair locations); San Francisco Dept. of Health, Director’s Rules & Regs., Garbage and Refuse (July 8, 2010) (requiring property owners to inform tenants about garbage disposal procedures). T he majority, at the end of Part II of its opinion, perhaps recognizing this problem, adds a general disclaimer. It says that it does not “question the legality of health and safety warnings long considered permissible, or purely factual and uncontroversial disclosures about commercial products.” Ante, at 16–17. But this generally phrased disclaimer would seem more likely to invite litigation than to provide needed limitation and clarification. The majority, for example, does not explain why the Act here, which is justified in part by health and safety considerations, does not fall within its “health” category. … Notably, the majority says nothing about limiting its language to the kind of instance where the Court has traditionally found the First Amendment wary of contentbased laws, namely, in cases of viewpoint discrimination. … Precedent does not require a test such as the majority’s. Rather, in saying the Act is not a longstanding health and safety law, the Court substitutes its own approach— without a defining standard—for an approach that was reasonably clear. Historically, the Court has been wary of claims that regulation of business activity, particularly health-related activity, violates the Constitution. Ever since this Court departed from the approach it set forth in Lochner v. New York, 198 U. S. 45 (1905), ordinary economic and social legislation has been thought to raise little constitutional concern. … Still, what about this specific case? The disclosure at issue here concerns speech related to abortion. It involves health, differing moral values, and differing points of view. Thus, rather than set forth broad, new, First Amendment principles, I believe that we should focus more directly upon precedent more closely related to the case at hand. This Court has more than once considered disclosure laws relating to reproductive health. Though those rules or holdings have changed over time, they should govern our disposition of this case. … Taking Casey as controlling, the law’s demand for evenhandedness requires a different answer than that perhaps suggested by Akron and Thornburgh. If a State can lawfully require a doctor to tell a woman seeking an abortion about adoption services, why should it not be able, as here, to require a medical counselor to tell a woman seeking prenatal care or other reproductive healthcare about childbirth and abortion services? As the question suggests, there is no convincing reason to distinguish between information about adoption and information about abortion in this context. After all, the rule of law embodies evenhandedness, and “what is sauce for the goose is normally sauce for the gander.” The majority tries to distinguish Casey as concerning a regulation of professional conduct that only incidentally burdened speech. Ante, at 10–11. Casey, in its view, applies only when obtaining “informed consent” to a medical procedure is directly at issue. This distinction, however, lacks moral, practical, and legal force. The individuals at issue here are all medical personnel engaging in activities that directly affect a woman’s health—not significantly different from the doctors at issue in Casey. … The majority concludes that Zauderer does not apply because the disclosure “in no way relates to the services that licensed clinics provide.” Ante, at 9. But information about state resources for family planning, prenatal care, and abortion is related to the services that licensed clinics provide. These clinics provide counseling about contraception (which is a family-planning service), ultrasounds or pregnancy testing (which is prenatal care), or abortion. Cal. Health & Safety Code Ann. §123471(a). The required disclosure is related to the clinic’s services because it provides information about state resources for the very same services. A patient who knows that she can receive free prenatal care from the State may well prefer to forgo the prenatal care offered at one of the clinics here. And for those interested in family planning and abortion services, information about such alternatives is relevant information to patients offered prenatal care, just as Casey considered information about adoption to be relevant to the abortion decision. Regardless, Zauderer is not so limited. Zauderer turned on the “material differences between disclosure requirements and outright prohibitions on speech.” … For these reasons I would not hold the California statute unconstitutional on its face, I would not require the District Court to issue a preliminary injunction forbidding its enforcement, and I respectfully dissent from the majority’s contrary conclusions. https://www.supremecourt.gov/opinions/17pdf/16-1140_5368.pdf TRUMP, PRESIDENT OF THE UNITED STATES, ET AL. v. HAWAII ET AL. Holding: Under the Immigration and Nationality Act, foreign nationals seeking entry into the United States undergo a vetting process to ensure that they satisfy the numerous requirements for admission. The Act also vests the President with authority to restrict the entry of aliens whenever he finds that their entry “would be detrimental to the interests of the United States.” 8 U. S. C. §1182(f). Relying on that delegation, the President concluded that it was necessary to impose entry restrictions on nationals of countries that do not share adequate information for an informed entry determination, or that otherwise present national security risks. Presidential Proclamation No. 9645, 82 Fed. Reg. 45161 (2017) (Proclamation). The plaintiffs in this litigation, respondents here, challenged the application of those entry restrictions to certain aliens abroad. We now decide whether the President had authority under the Act to issue the Proclamation, and whether the entry policy violates the Establishment Clause of the First Amendment. [They hold the President had authority and the First Amendment is likely not violated.] … Before addressing the merits of plaintiffs’ statutory claims, we consider whether we have authority to do so. The Government argues that plaintiffs’ challenge to the Proclamation under the INA is not justiciable. Relying on the doctrine of consular nonreviewability, the Government contends that because aliens have no “claim of right” to enter the United States, and because exclusion of aliens is “a fundamental act of sovereignty” by the political branches, review of an exclusion decision “is not within the province of any court, unless expressly authorized by law.”...[W]e may assume without deciding that plaintiffs’ statutory claims are reviewable, notwithstanding consular nonreviewability or any other statutory nonreviewability issue, and we proceed on that basis. The INA establishes numerous grounds on which an alien abroad may be inadmissible to the United States and ineligible for a visa. See, e.g., 8 U. S. C. §§1182(a)(1) (health-related grounds), (a)(2) (criminal history), (a)(3)(B) (terrorist activities), (a)(3)(C) (foreign policy grounds). Congress has also delegated to the President authority to suspend or restrict the entry of aliens in certain circumstances. The principal source of that authority, §1182(f), enables the President to “suspend the entry of all aliens or any class of aliens” whenever he “finds” that their entry “would be detrimental to the interests of the United States.” ... [T]he language of §1182(f) is clear, and the Proclamation does not exceed any textual limit on the President’s authority. ... Plaintiffs’ structural argument starts with the premise that §1182(f) does not give the President authority to countermand Congress’s considered policy judgments. The President, they say, may supplement the INA, but he cannot supplant it. And in their view, the Proclamation falls in the latter category because Congress has already specified a two-part solution to the problem of aliens seeking entry from countries that do not share sufficient information with the United States....But plaintiffs have not identified any conflict between the statute and the Proclamation that would implicitly bar the President from addressing deficiencies in the Nation’s vetting system. … Plaintiffs’ final statutory argument is that the President’s entry suspension violates §1152(a)(1)(A), which provides that “no person shall . . . be discriminated against in the issuance of an immigrant visa because of the person’s race, sex, nationality, place of birth, or place of residence.” They contend that we should interpret the provision as prohibiting nationality-based discrimination throughout the entire immigration process, despite the reference in §1152(a)(1)(A) to the act of visa issuance alone. … [W]e reject plaintiffs’ interpretation because it ignores the basic distinction between admissibility determinations and visa issuance that runs throughout the INA. Section 1182 defines the pool of individuals who are admissible to the United States. Its restrictions come into play at two points in the process of gaining entry (or admission)4 into the United States. First, any alien who is inadmissible under §1182 (based on, for example, health risks, criminal history, or foreign policy consequences) is screened out as “ineligible to receive a visa.” 8 U. S. C. §1201(g). Second, even if a consular officer issues a visa, entry into the United States is not guaranteed. As every visa application explains, a visa does not entitle an alien to enter the United States “if, upon arrival,” an immigration officer determines that the applicant is “inadmissible under this chapter, or any other provision of law”— including §1182(f). §1201(h). Sections 1182(f) and 1152(a)(1)(A) thus operate in different spheres: Section 1182 defines the universe of aliens who are admissible into the United States (and therefore eligible to receive a visa). Once §1182 sets the boundaries of admissibility into the United States, §1152(a)(1)(A) prohibits discrimination in the allocation of immigrant visas based on nationality and other traits. … We now turn to plaintiffs’ claim that the Proclamation was issued for the unconstitutional purpose of excluding Muslims. … Plaintiffs believe that the Proclamation violates this prohibition by singling out Muslims for disfavored treatment. The entry suspension, they contend, operates as a “religious gerrymander,” in part because most of the countries covered by the Proclamation have Muslim-majority populations. And in their view, deviations from the information-sharing baseline criteria suggest that the results of the multi-agency review were “foreordained.” Relying on Establishment Clause precedents concerning laws and policies applied domestically, plaintiffs allege that the primary purpose of the Proclamation was religious animus and that the President’s stated concerns about vetting protocols and national security were but pretexts for discriminating against Muslims. Brief for Respondents 69–73. At the heart of plaintiffs’ case is a series of statements by the President and his advisers casting doubt on the official objective of the Proclamation. … Plaintiffs argue that this President’s words strike at fundamental standards of respect and tolerance, in violation of our constitutional tradition. But the issue before us is not whether to denounce the statements. It is instead the significance of those statements in reviewing a Presidential directive, neutral on its face, addressing a matter within the core of executive responsibility. In doing so, we must consider not only the statements of a particular President, but also the authority of the Presidency itself. … In Kleindienst v. Mandel, the Attorney General denied admission to a Belgian journalist and self-described “revolutionary Marxist,” Ernest Mandel, who had been invited to speak at a conference at Stanford University. 408 U. S., at 756–757. The professors who wished to hear Mandel speak challenged that decision under the First Amendment, and we acknowledged that their constitutional “right to receive information” was implicated. Id., at 764–765. But we limited our review to whether the Executive gave a “facially legitimate and bona fide” reason for its action. Id., at 769. Given the authority of the political branches over admission, we held that “when the Executive exercises this [delegated] power negatively on the basis of a facially legitimate and bona fide reason, the courts will neither look behind the exercise of that discretion, nor test it by balancing its justification” against the asserted constitutional interests of U. S. citizens. Id., at 770. … A conventional application of Mandel, asking only whether the policy is facially legitimate and bona fide, would put an end to our review. But the Government has suggested that it may be appropriate here for the inquiry to extend beyond the facial neutrality of the order. For our purposes today, we assume that we may look behind the face of the Proclamation to the extent of applying rational basis review. That standard of review considers whether the entry policy is plausibly related to the Government’s stated objective to protect the country and improve vetting processes. As a result, we may consider plaintiffs’ extrinsic evidence, but will uphold the policy so long as it can reasonably be understood to result from a justification independent of unconstitutional grounds. Given the standard of review, it should come as no surprise that the Court hardly ever strikes down a policy as illegitimate under rational basis scrutiny. On the few occasions where we have done so, a common thread has been that the laws at issue lack any purpose other than a “bare . . . desire to harm a politically unpopular group.” … The Proclamation does not fit this pattern. It cannot be said that it is impossible to “discern a relationship to legitimate state interests” or that the policy is “inexplicable by anything but animus.” … The Proclamation is expressly premised on legitimate purposes: preventing entry of nationals who cannot be adequately vetted and inducing other nations to improve their practices. The text says nothing about religion. Plaintiffs and the dissent nonetheless emphasize that five of the seven nations currently included in the Proclamation have Muslim-majority populations. Yet that fact alone does not support an inference of religious hostility, given that the policy covers just 8% of the world’s Muslim population and is limited to countries that were previously designated by Congress or prior administrations as posing national security risks. … Under these circumstances, the Government has set forth a sufficient national security justification to survive rational basis review. We express no view on the soundness of the policy. We simply hold today that plaintiffs have not demonstrated a likelihood of success on the merits of their constitutional claim. Lineup: Roberts, joined by Kennedy, Thomas, Alito, and Gorsuch. Concurrence by Kennedy. Concurrence by Thomas. Dissent by Breyer, joined by Kagan. Dissent by Sotomayor, joined by Ginsburg. Notes From Other Opinions: Kennedy (concurring): There may be some common ground between the opinions in this case, in that the Court does acknowledge that in some instances, governmental action may be subject to judicial review to determine whether or not it is “inexplicable by anything but animus,” Romer v. Evans, 517 U. S. 620, 632 (1996), which in this case would be animosity to a religion. Whether judicial proceedings may properly continue in this case, in light of the substantial deference that is and must be accorded to the Executive in the conduct of foreign affairs, and in light of today’s decision, is a matter to be addressed in the first instance on remand. And even if further proceedings are permitted, it would be necessary to determine that any discovery and other preliminary matters would not themselves intrude on the foreign affairs power of the Executive. In all events, it is appropriate to make this further observation. There are numerous instances in which the statements and actions of Government officials are not subject to judicial scrutiny or intervention. That does not mean those officials are free to disregard the Constitution and the rights it proclaims and protects. … The First Amendment prohibits the establishment of religion and promises the free exercise of religion. From these safeguards, and from the guarantee of freedom of speech, it follows there is freedom of belief and expression. It is an urgent necessity that officials adhere to these constitutional guarantees and mandates in all their actions, even in the sphere of foreign affairs. Thomas (concurring): I join the Court’s opinion, which highlights just a few of the many problems with the plaintiffs’ claims. There are several more. Section 1182(f) does not set forth any judicially enforceable limits that constrain the President. Nor could it, since the President has inherent authority to exclude aliens from the country. Further, the Establishment Clause does not create an individual right to be free from all laws that a “reasonable observer” views as religious or antireligious. The plaintiffs cannot raise any other First Amendment claim, since the alleged religious discrimination in this case was directed at aliens abroad. And, even on its own terms, the plaintiffs’ proffered evidence of anti-Muslim discrimination is unpersuasive. Merits aside, I write separately to address the remedy that the plaintiffs sought and obtained in this case. The District Court imposed an injunction that barred the Government from enforcing the President’s Proclamation against anyone, not just the plaintiffs. Injunctions that prohibit the Executive Branch from applying a law or policy against anyone—often called “universal” or “nationwide” injunctions—have become increasingly common. District courts, including the one here, have begun imposing universal injunctions without considering their authority to grant such sweeping relief. These injunctions are beginning to take a toll on the federal court system— preventing legal questions from percolating through the federal courts, encouraging forum shopping, and making every case a national emergency for the courts and for the Executive Branch. I am skeptical that district courts have the authority to enter universal injunctions. These injunctions did not emerge until a century and a half after the founding. And they appear to be inconsistent with longstanding limits on equitable relief and the power of Article III courts. If their popularity continues, this Court must address their legality. … [W]hether the authority comes from a statute or the Constitution, district courts’ authority to provide equitable relief is meaningfully constrained. This authority must comply with longstanding principles of equity that predate this country’s founding. Universal injunctions do not seem to comply with those principles. These injunctions are a recent development, emerging for the first time in the 1960s and dramatically increasing in popularity only very recently. And they appear to conflict with several traditional rules of equity, as well as the original understanding of the judicial role. … [U]niversal injunctions are legally and historically dubious. If federal courts continue to issue them, this Court is dutybound to adjudicate their authority to do so. Breyer (dissenting): The question before us is whether Proclamation No. 9645 is lawful. If its promulgation or content was significantly affected by religious animus against Muslims, it would violate the relevant statute or the First Amendment itself. If, however, its sole ratio decidendi was one of national security, then it would be unlikely to violate either the statute or the Constitution. Which is it? Members of the Court principally disagree about the answer to this question, i.e., about whether or the extent to which religious animus played a significant role in the Proclamation’s promulgation or content. In my view, the Proclamation’s elaborate system of exemptions and waivers can and should help us answer this question. That system provides for case-by-case consideration of persons who may qualify for visas despite the Proclamation’s general ban. … On the one hand, if the Government is applying the exemption and waiver provisions as written, then its argument for the Proclamation’s lawfulness is strengthened. … On the other hand, if the Government is not applying the system of exemptions and waivers that the Proclamation contains, then its argument for the Proclamation’s lawfulness becomes significantly weaker. … And, perhaps most importantly, if the Government is not applying the Proclamation’s exemption and waiver system, the claim that the Proclamation is a “Muslim ban,” rather than a “security-based” ban, becomes much stronger. How could the Government successfully claim that the Proclamation rests on security needs if it is excluding Muslims who satisfy the Proclamation’s own terms? At the same time, denying visas to Muslims who meet the Proclamation’s own security terms would support the view that the Government excludes them for reasons based upon their religion. Unfortunately there is evidence that supports the second possibility, i.e., that the Government is not applying the Proclamation as written. The Proclamation provides that the Secretary of State and the Secretary of Homeland Security “shall coordinate to adopt guidance” for consular officers to follow when deciding whether to grant a waiver. §3(c)(ii). Yet, to my knowledge, no guidance has issued. … An examination of publicly available statistics also provides cause for concern. The State Department reported that during the Proclamation’s first month, two waivers were approved out of 6,555 eligible applicants. … Finally, in a pending case in the Eastern District of New York, a consular official has filed a sworn affidavit asserting that he and other officials do not, in fact, have discretion to grant waivers. According to the affidavit, consular officers “were not allowed to exercise that discretion” and “the waiver [process] is merely ‘window dressing.’” … Declarations, anecdotal evidence, facts, and numbers taken from amicus briefs are not judicial factfindings. The Government has not had an opportunity to respond, and a court has not had an opportunity to decide. But, given the importance of the decision in this case, the need for assurance that the Proclamation does not rest upon a “Muslim ban,” and the assistance in deciding the issue that answers to the “exemption and waiver” questions may provide, I would send this case back to the District Court for further proceedings. And, I would leave the injunction in effect while the matter is litigated. Regardless, the Court’s decision today leaves the District Court free to explore these issues on remand. If this Court must decide the question without this further litigation, I would, on balance, find the evidence of antireligious bias, including statements on a website taken down only after the President issued the two executive orders preceding the Proclamation, along with the other statements also set forth in JUSTICE SOTOMAYOR’s opinion, a sufficient basis to set the Proclamation aside. And for these reasons, I respectfully dissent. Sotomayor (dissenting): The United States of America is a Nation built upon the promise of religious liberty. Our Founders honored that core promise by embedding the principle of religious neutrality in the First Amendment. The Court’s decision today fails to safeguard that fundamental principle. It leaves undisturbed a policy first advertised openly and unequivocally as a “total and complete shutdown of Muslims entering the United States” because the policy now masquerades behind a façade of national-security concerns. But this repackaging does little to cleanse Presidential Proclamation No. 9645 of the appearance of discrimination that the President’s words have created. Based on the evidence in the record, a reasonable observer would conclude that the Proclamation was motivated by anti-Muslim animus. That alone suffices to show that plaintiffs are likely to succeed on the merits of their Establishment Clause claim. The majority holds otherwise by ignoring the facts, misconstruing our legal precedent, and turning a blind eye to the pain and suffering the Proclamation inflicts upon countless families and individuals, many of whom are United States citizens. Because that troubling result runs contrary to the Constitution and our precedent, I dissent. … In the intervening years since Korematsu, our Nation has done much to leave its sordid legacy behind. See, e.g., Civil Liberties Act of 1988, 50 U. S. C. App. §4211 et seq. (setting forth remedies to individuals affected by the executive order at issue in Korematsu); Non-Detention Act of 1971, 18 U. S. C. §4001(a) (forbidding the imprisonment or detention by the United States of any citizen absent an Act of Congress). Today, the Court takes the important step of finally overruling Korematsu, denouncing it as “gravely wrong the day it was decided.” Ante, at 38 (citing Korematsu, 323 U. S., at 248 (Jackson, J., dissenting)). This formal repudiation of a shameful precedent is laudable and long overdue. But it does not make the majority’s decision here acceptable or right. By blindly accepting the Government’s misguided invitation to sanction a discriminatory policy motivated by animosity toward a disfavored group, all in the name of a superficial claim of national security, the Court redeploys the same dangerous logic underlying Korematsu and merely replaces one “gravely wrong” decision with another. Ante, at 38. Our Constitution demands, and our country deserves, a Judiciary willing to hold the coordinate branches to account when they defy our most sacred legal commitments. Because the Court’s decision today has failed in that respect, with profound regret, I dissent. https://www.supremecourt.gov/opinions/17pdf/17-965_h315.pdf [internal citations inconsistently omitted throughout]
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Jun 26, 2018 16:23
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Has Kennedy sided with the liberals even once this term in a 5-4 decision?
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Jun 26, 2018 16:30
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So the SCOTUS has been successfully hijacked by right wing assholes, right? And the best option the left has is got add a bunch of left wing justices once we’re in power?
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Jun 26, 2018 16:39
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Pollyanna posted:So the SCOTUS has been successfully hijacked by right wing assholes, right? And the best option the left has is got add a bunch of left wing justices once we’re in power? Yes. Well, more that the hijacking was continued after Scalia died and it should have ended, but basically correct.
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Jun 26, 2018 16:40
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I was assured that Merrick Garland was a moderate, so I don’t know why everyone is assuming he wouldn’t have voted the same way as Gorsuch in some of these 5-4 cases. (USER WAS PUT ON PROBATION FOR THIS POST)
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Jun 26, 2018 16:41
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because no moderate would've voted as gorsuch in them, dumbass.
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Jun 26, 2018 16:42
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Syzygy Stardust posted:I was assured that Merrick Garland was a moderate, so I don’t know why everyone is assuming he wouldn’t have voted the same way as Gorsuch in some of these 5-4 cases. Sorry, your lame attempt at trolling is too obvious. It is not plausible for you to be as stupid as you apparently want to look.
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Jun 26, 2018 16:43
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Oh give it a rest, he's not even a particularly good troll
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Jun 26, 2018 16:43
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evilweasel posted:Yes. Well, more that the hijacking was continued after Scalia died and it should have ended, but basically correct. Alternatively, impeach all the conservatives for making decisions contrary to law for nakedly political purposes, as with the VRA decision. But that would be harder.
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Jun 26, 2018 16:46
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botany posted:you are a massive racist, shut the gently caress up Groovelord Neato posted:shut the gently caress up idiot. What the gently caress is the point of me putting racist shitsuckers on ignore if you people keep quoting them?
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Jun 26, 2018 16:46
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Zeeman posted:Has Kennedy sided with the liberals even once this term in a 5-4 decision? Nope. Of all the 5-4s, Kennedy's been with the conservatives every time.
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Jun 26, 2018 16:47
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Keeshhound posted:What the gently caress is the point of me putting racist shitsuckers on ignore if you people keep quoting them? ignore is for cowards.
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Jun 26, 2018 16:49
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Zoran posted:Alternatively, impeach all the conservatives for making decisions contrary to law for nakedly political purposes, as with the VRA decision. But that would be harder. yeah but democrats aren't getting 67 votes in the senate anytime soon, let alone a comfortable buffer to lose a vote or two to decorum and norms there's not a lot of decisions i'd vote to impeach over, but the VRA is one given that the constitution specifically vested the enforcement of the 15th in Congress out of an awareness that the Supreme Court would try to interfere, making the decision that congress's determinations were not appropriate entirely outside the power of the supreme court
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Jun 26, 2018 16:50
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Democrats crossed the aisle to vote for Gorsuch lol they aren't doing poo poo.
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Jun 26, 2018 16:52
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Groovelord Neato posted:ignore is for cowards. Keeps them from wasting some of my precious tethering data.
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Jun 26, 2018 16:54
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It is also possible to reverse some of the egregious decisions - like the arbitration decisions - by changing the law. You could also just pass a law that says that any decision interpreting federal law that was written by one of the conservatives in a 5-4 decision is overturned and the law is as the liberals described it in dissent (and where there are multiple dissents, obviously the one written by RBG controls).
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Jun 26, 2018 16:58
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evilweasel posted:It is also possible to reverse some of the egregious decisions - like the arbitration decisions - by changing the law. You could also just pass a law that says that any decision interpreting federal law that was written by one of the conservatives in a 5-4 decision is overturned and the law is as the liberals described it in dissent (and where there are multiple dissents, obviously the one written by RBG controls). Theoretically true, but practically speaking: Shelby County
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Jun 26, 2018 16:59
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So now that korematsu is gone (rip) what should be my new favorite "holy lol this is still good law 50+ years later" case
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Jun 26, 2018 17:01
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VitalSigns posted:Theoretically true, but practically speaking: Shelby County The fun part is that even if the conservatives want to find some nonsense reason to re-interpret the law back in their way, they have to do it law by law and a conservative or two probably dies before they make a big dent 
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Jun 26, 2018 17:01
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evilweasel posted:The fun part is that even if the conservatives want to find some nonsense reason to re-interpret the law back in their way, they have to do it law by law and a conservative or two probably dies before they make a big dent That is a good point actually.
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Jun 26, 2018 17:03
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Pollyanna posted:So the SCOTUS has been successfully hijacked by right wing assholes, right? And the best option the left has is got add a bunch of left wing justices once we’re in power? There's always 
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Jun 26, 2018 17:06
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So who else is getting jittery about the outcome of the inevitable Nixon v. United States analogue?
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Jun 26, 2018 17:23
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mastershakeman posted:So now that korematsu is gone (rip) what should be my new favorite "holy lol this is still good law 50+ years later" case Trump Travel Ban.
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Jun 26, 2018 17:26
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mastershakeman posted:So now that korematsu is gone (rip) what should be my new favorite "holy lol this is still good law 50+ years later" case Buck v. Bell. Skinner v. Oklahoma avoided overturning it by finding other (rather contrived) issues with a particular sterilization law.
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Jun 26, 2018 17:26
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So we're pretty much 100% confirmed that Janus vs. AFSCME is going to be a 5-4 conservative slam dunk with the widest possible ruling to gently caress over public unions forever, right?
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Jun 26, 2018 17:30
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Zeeman posted:I’d love to understand how making a non-medical clinic tell people it’s not a medical clinic is a First Amendment violation. Would the court hold that a non-lawyer that presented themselves as a lawyer had constitutional protection? WaPo is saying that the trump admin was ok with requiring unlicensed centers to say that they are unlicensed. I'm assuming the SC struck down the entire law (in which both parts were included) , but couldn't CA just reestablish the law minus the abortion language bit? I haven't seen anything saying the judges had a problem with anything else, but maybe those bits aren't being quoted (yet).
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Jun 26, 2018 17:30
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Sydin posted:So we're pretty much 100% confirmed that Janus vs. AFSCME is going to be a 5-4 conservative slam dunk with the widest possible ruling to gently caress over public unions forever, right? Yes.
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Jun 26, 2018 17:31
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Sydin posted:So we're pretty much 100% confirmed that Janus vs. AFSCME is going to be a 5-4 conservative slam dunk with the widest possible ruling to gently caress over public unions forever, right? Oh most definitely. Upon a plain reading it's clear that public sector unions are unconstitutional as they are not mentioned in the constitution.
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Jun 26, 2018 17:34
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Sydin posted:So we're pretty much 100% confirmed that Janus vs. AFSCME is going to be a 5-4 conservative slam dunk with the widest possible ruling to gently caress over public unions forever, right?
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Jun 26, 2018 17:37
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mastershakeman posted:So now that korematsu is gone (rip) what should be my new favorite "holy lol this is still good law 50+ years later" case Still Korematsu, that statement is dicta As soon as someone wants to rely on Korematsu again they will, likely fairly soon
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Jun 26, 2018 17:45
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I'm wondering how the court will manage to exempt police unions in Janus. Any thoughts?
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Jun 26, 2018 17:49
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Armack posted:I'm wondering how the court will manage to exempt police unions in Janus. Any thoughts? "Given the necessity of police for law and order and the requirement that the members of their ranks feel a certain kinship and espirit d'corpse [sic], police unions are in the public interest and are therefore still entirely permissible." -Gorsuch
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Jun 26, 2018 17:54
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Alternatively they'll just exempt emergency service worker unions with a handwave about how unions are important for these critically important public sector workers in a way they aren't for a mail clerk or something. Would also let them bang the "Not Partisan!" drum because hey, it's not just police, we're saving fire fighter unions too!
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Jun 26, 2018 18:04
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Is it possible for California to pass a law establishing an express private cause of action against unlicensed pregnancy centers? It seems inherently unfair to the women looking for assistance with an abortion could be deceived in this manner. If they can't require the center to post a notice, can it allow for an individual to sue for damages (actual or perhaps statutory) if they are in fact deceived? Or is that exactly the equivalent of the state dictating speech?
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Jun 26, 2018 18:05
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