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This probably belongs here too: https://twitter.com/benwikler/status/1247302286092709888 US Supreme Court blocks Wisconsin from extending absentee voting despite coronavirus https://www.documentcloud.org/documents/6826818-SCOTUS.html#document/p1
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Apr 7, 2020 02:04
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How more completely transparent can the conservative majority make their voter suppression support
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Apr 7, 2020 14:47
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Kloaked00 posted:How more completely transparent can the conservative majority make their voter suppression support I mean they handed George W. Bush the election in 2000.
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Apr 7, 2020 14:56
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 Opinion! REPUBLICAN NATIONAL COMMITTEE, ET AL. v. DEMOCRATIC NATIONAL COMMITTEE, ET AL. Holding / Majority Opinion (Per Curiam): The application for stay presented to JUSTICE KAVANAUGH and by him referred to the Court is granted. The District Court’s order granting a preliminary injunction is stayed to the extent it requires the State to count absentee ballots postmarked after April 7, 2020. Wisconsin has decided to proceed with the elections scheduled for Tuesday, April 7. The wisdom of that decision is not the question before the Court. The question before the Court is a narrow, technical question about the absentee ballot process. In this Court, all agree that the deadline for the municipal clerks to receive absentee ballots has been extended from Tuesday, April 7, to Monday, April 13. That extension, which is not challenged in this Court, has afforded Wisconsin voters several extra days in which to mail their absentee ballots. The sole question before the Court is whether absentee ballots now must be mailed and postmarked by election day, Tuesday, April 7, as state law would necessarily require, or instead may be mailed and postmarked after election day, so long as they are received by Monday, April 13. Importantly, in their preliminary injunction motions, the plaintiffs did not ask that the District Court allow ballots mailed and postmarked after election day, April 7, to be counted. That is a critical point in the case. Nonetheless, five days before the scheduled election, the District Court unilaterally ordered that absentee ballots mailed and postmarked after election day, April 7, still be counted so long as they are received by April 13. Extending the date by which ballots may be cast by voters—not just received by the municipal clerks but cast by voters— for an additional six days after the scheduled election day fundamentally alters the nature of the election. And again, the plaintiffs themselves did not even ask for that relief in their preliminary injunction motions. Our point is not that the argument is necessarily forfeited, but is that the plaintiffs themselves did not see the need to ask for such relief. By changing the election rules so close to the election date and by affording relief that the plaintiffs themselves did not ask for in their preliminary injunction motions, the District Court contravened this Court’s precedents and erred by ordering such relief. This Court has repeatedly emphasized that lower federal courts should ordinarily not alter the election rules on the eve of an election. …[T]he deadline for receiving ballots was already extended to accommodate Wisconsin voters, from April 7 to April 13. Again, that extension has the effect of extending the date for a voter to mail the ballot from, in effect, Saturday, April 4, to Tuesday, April 7. That extension was designed to ensure that the voters of Wisconsin can cast their ballots and have their votes count. That is the relief that the plaintiffs actually requested in their preliminary injunction motions. The District Court on its own ordered yet an additional extension, which would allow voters to mail their ballots after election day, which is extraordinary relief and would fundamentally alter the nature of the election by allowing voting for six additional days after the election. Therefore, subject to any further alterations that the State may make to state law, in order to be counted in this election a voter’s absentee ballot must be either (i) postmarked by election day, April 7, 2020, and received by April 13, 2020, at 4:00 p.m., or (ii) hand-delivered as provided under state law by April 7, 2020, at 8:00 p.m. The Court’s decision on the narrow question before the Court should not be viewed as expressing an opinion on the broader question of whether to hold the election, or whether other reforms or modifications in election procedures in light of COVID–19 are appropriate. That point cannot be stressed enough. The stay is granted pending final disposition of the appeal by the United States Court of Appeals for the Seventh Circuit and the timely filing and disposition of a petition for a writ of certiorari. Should the petition for a writ of certiorari be denied, this stay shall terminate automatically. In the event the petition for a writ of certiorari is granted, the stay shall terminate upon the sending down of the judgment of this Court. It is so ordered. Lineup: Per Curiam, but clearly Roberts, Thomas, Alito, Gorsuch, and Kavanaugh. Dissent by Ginsburg, joined by Breyer, Sotomayor, and Kagan. Dissent (Ginsburg, joined by Breyer, Sotomayor, and Kagan): The District Court, acting in view of the dramatically evolving COVID–19 pandemic, entered a preliminary injunction to safeguard the availability of absentee voting in Wisconsin’s spring election. This Court now intervenes at the eleventh hour to prevent voters who have timely requested absentee ballots from casting their votes. I would not disturb the District Court’s disposition, which the Seventh Circuit allowed to stand. Wisconsin’s spring election is scheduled for tomorrow, Tuesday, April 7, 2020. At issue are the presidential primaries, a seat on the Wisconsin Supreme Court, three seats on the Wisconsin Court of Appeals, over 100 other judgeships, over 500 school board seats, and several thousand other positions. In the weeks leading up to the election, the COVID–19 pandemic has become a “public health crisis.” … Several weeks ago, plaintiffs—comprising individual Wisconsin voters, community organizations, and the state and national Democratic parties—filed three lawsuits against members of the Wisconsin Elections Commission in the United States District Court for the Western District of Wisconsin.1 The District Court consolidated the suits on March 28. The plaintiffs sought several forms of relief, all aimed at easing the effects of the COVID–19 pandemic on the upcoming election. After holding an evidentiary hearing, the District Court issued a preliminary injunction on April 2. As relevant here, the court concluded that the existing deadlines for absentee voting would unconstitutionally burden Wisconsin citizens’ right to vote. To alleviate that burden, the court entered a twofold remedy. First, the District Court extended the deadline for voters to request absentee ballots from April 2 to April 3. Second, the District Court extended the deadline for election officials to receive completed absentee ballots. Previously, Wisconsin law required that absentee ballots be received by 8 p.m. on election day, April 7; under the preliminary injunction, the ballots would be accepted until 4 p.m. on April 13, regardless of the postmark date. The District Court also enjoined members of the Elections Commission and election inspectors from releasing any report of polling results before the new absentee-voting deadline, April 13. Although the members of the Wisconsin Elections Commission did not challenge the preliminary injunction, the intervening defendants applied to the Seventh Circuit for a partial stay. Of the twofold remedy just described, the stay applicants challenged only the second aspect, the extension of the deadline for returning absentee ballots. On April 3, the Seventh Circuit declined to modify the absentee-ballot deadline. The same applicants then sought a partial stay in this Court, which the Court today grants. The Court’s order requires absentee voters to postmark their ballots by election day, April 7—i.e., tomorrow—even if they did not receive their ballots by that date. That is a novel requirement. Recall that absentee ballots were originally due back to election officials on April 7, which the District Court extended to April 13. Neither of those deadlines carried a postmark-by requirement. While I do not doubt the good faith of my colleagues, the Court’s order, I fear, will result in massive disenfranchisement. A voter cannot deliver for postmarking a ballot she has not received. Yet tens of thousands of voters who timely requested ballots are unlikely to receive them by April 7, the Court’s postmark deadline. … This Court’s intervention is thus ill advised, especially so at this late hour. ... What concerns could justify consequences so grave? The Court’s order first suggests a problem of forfeiture, noting that the plaintiffs’ written preliminary-injunction motions did not ask that ballots postmarked after April 7 be counted. But unheeded by the Court, although initially silent, the plaintiffs specifically requested that remedy at the preliminary-injunction hearing in view of the ever-increasing demand for absentee ballots. See Tr. 102–103 (Apr. 1, 2020). Second, the Court’s order cites Purcell, apparently skeptical of the District Court’s intervention shortly before an election. Nevermind that the District Court was reacting to a grave, rapidly developing public health crisis. If proximity to the election counseled hesitation when the District Court acted several days ago, this Court’s intervention today—even closer to the election—is all the more inappropriate. Third, the Court notes that the District Court’s order allowed absentee voters to cast ballots after election day. If a voter already in line by the poll’s closing time can still vote, why should Wisconsin’s absentee voters, already in line to receive ballots, be denied the franchise? According to the tay applicants, election-distorting gamesmanship might occur if ballots could be cast after initial results are published. But obviating that harm, the District Court enjoined the publication of election results before April 13, the deadline for returning absentee ballots, and the Wisconsin Elections Commission directed election officials not to publish results before that date. The concerns advanced by the Court and the applicants pale in comparison to the risk that tens of thousands of voters will be disenfranchised. Ensuring an opportunity for the people of Wisconsin to exercise their votes should be our paramount concern. The majority of this Court declares that this case presents a “narrow, technical question.” Ante, at 1. That is wrong. The question here is whether tens of thousands of Wisconsin citizens can vote safely in the midst of a pandemic. Under the District Court’s order, they would be able to do so. Even if they receive their absentee ballot in the days immediately following election day, they could return it. With the majority’s stay in place, that will not be possible. Either they will have to brave the polls, endangering their own and others’ safety. Or they will lose their right to vote, through no fault of their own. That is a matter of utmost importance—to the constitutional rights of Wisconsin’s citizens, the integrity of the State’s election process, and in this most extraordinary time, the health of the Nation. https://www.supremecourt.gov/opinions/19pdf/19a1016_o759.pdf
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Apr 7, 2020 16:35
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If Evers has to call in the state guard to help man polling stations then he needs to fight fire with fire: order them to only man stations in blue strongholds and leave the GOP-heavy districts to deal with a severe shortage of polling places for a change. As for Roberts and his ilk, there's no fate too terrible for them (though they'll all die happy, wealthy, and powerful, because there is no justice in the world).
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Apr 7, 2020 16:58
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Kloaked00 posted:How more completely transparent can the conservative majority make their voter suppression support Why even bother trying to hide anything when they have an utterly massive propaganda machine of Fox News and company helping them at every turn. Nixon wouldn't have resigned if he had Fox at the time. It's the whole reason Fox news was originally made.
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Apr 7, 2020 17:01
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Wait, did the court issue a per curiam opinion with 4 dissents? So no judge was willing to sign their name to the opinion but there were at least 5 who voted for it and 4 dissented. So... Why? Like are they just kind of hoping that no records of this decision have their names next to it? Or were they hoping that the more liberal justices would be so embarrassed they'd sign on anyway?
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Apr 7, 2020 23:28
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MrNemo posted:Wait, did the court issue a per curiam opinion with 4 dissents? So no judge was willing to sign their name to the opinion but there were at least 5 who voted for it and 4 dissented. So... Why? Like are they just kind of hoping that no records of this decision have their names next to it? Or were they hoping that the more liberal justices would be so embarrassed they'd sign on anyway? Holy poo poo I didn't even register that on first reading. What incredible levels of pointless, evil turbo-cowardice.
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Apr 8, 2020 00:45
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MrNemo posted:Wait, did the court issue a per curiam opinion with 4 dissents? So no judge was willing to sign their name to the opinion but there were at least 5 who voted for it and 4 dissented. So... Why? Like are they just kind of hoping that no records of this decision have their names next to it? Or were they hoping that the more liberal justices would be so embarrassed they'd sign on anyway? A theory I heard a while ago is that per curiam opinions aren't handled well in the law databases so when people search for specific justices this case won't come up for anyone who voted in the majority. So when biographies of these assholes are written this decision will magically not make it in. I'm not sure how much weight to put on that theory, but it doesn't seem too insane. It does seem pretty powerful for the majority to not have to sign their names to an opinion, though.
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Apr 10, 2020 01:29
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Yeah, not having the obvious link of official records putting their name next to this is the only reason I can think of for this but... Why this particular case I guess? Like I don't quite get how they're happy to sign their name to all manner of evil crap but this particular one is dangerous enough that they think it might be a stain but they're scared of the consequences of not having it too much to not actually support it? I can't see it being a frequent tool they can pull out either, I'd imagine if this becomes a frequent occurrence legal records would start putting the names of non dissenting justices against these because it gets ridiculous listing a whole load of per curiam 5-4 opinions with the 4 dissents named. So why was this one with doing it with? I don't feel like it can be because they're afraid hundreds die, if this actually attracts any historical attention it's not a viable tactic.
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Apr 10, 2020 09:05
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If no justices signed on to the majority that sounds like as good an excuse as any for someone to say gently caress it and declare they don't recognize the ruling as legitimate if no justice is willing to tied their name to it.
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Apr 14, 2020 23:50
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Evil Fluffy posted:If no justices signed on to the majority that sounds like as good an excuse as any for someone to say gently caress it and declare they don't recognize the ruling as legitimate if no justice is willing to tied their name to it. "all prior per curiam opinions no longer exist" would certainly be entertaining
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Apr 15, 2020 01:08
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People tied their names to poo poo opinions like Korematsu, Trump v HI, Terry, etc. Wouldn't really change anything going forward if per curiam was no longer allowed. They'd still continue to churn out horrible rulings one after another
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Apr 15, 2020 01:19
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I think he's more suggesting that there's a lot of per curiam opinions that have quite a lot of case law and precedent built on them. I think the original idea was for opinions that are so obvious nobody wanted to spend time listening to arguments and putting out a solid opinion. Using it as a vehicle to escape judges having their names on poo poo opinions started with Bush v Gore I think (no idea on the history there) but getting rid of them would also mean reopening a load of 'that's really loving obvious' legal questions that I'm sure hyper chud courts wouldn't jump on.
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Apr 15, 2020 08:30
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Looks like they just deemed non-unanimous jury trials unconstitutional. This is not uncommon in Oregon, even though the case came from Louisiana. Going to be interesting seeing how many people move for new trials or other kinds of relief.
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Apr 20, 2020 18:12
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And Thomas, of course, continued his tilting at the windmill of due process jurisprudence.
Mr. Nice! fucked around with this message at 18:20 on Apr 20, 2020 |
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Apr 20, 2020 18:17
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Kagan dissented for some reason
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Apr 20, 2020 18:49
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FlamingLiberal posted:Kagan dissented for some reason My personal guess is because of the large amounts of the opinion dedicated to stare decisis and how much the majority can and should ignore past precedent. In essence this ruling makes it easier to strike down other SCOTUS cases. She did not write separately, so I do not know, though. She did not join on the section of the dissent calling Janus and Citizen's United good cases, though.
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Apr 20, 2020 18:56
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FlamingLiberal posted:Kagan dissented for some reason I don't know how much it might have influenced her, but the Oregon AG was very opposed to a constitutional ruling on this because she didn't want to open up the opportunity for people to appeal convictions. The AG wanted to get rid of it through a voter petition or the legislature. Which, honestly, in my opinion is pretty gross. If you recognize that it's wrong and unjust, you need to fix it for everyone, even if it's messier.
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Apr 20, 2020 19:04
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Opinions! RAMOS v. LOUISIANA Holding / Majority Opinion (Gorsuch): Accused of a serious crime, Evangelisto Ramos insisted on his innocence and invoked his right to a jury trial. Eventually, 10 jurors found the evidence against him persuasive. But a pair of jurors believed that the State of Louisiana had failed to prove Mr. Ramos’s guilt beyond reasonable doubt; they voted to acquit. In 48 States and federal court, a single juror’s vote to acquit is enough to prevent a conviction. But not in Louisiana. Along with Oregon, Louisiana has long punished people based on 10-to-2 verdicts like the one here. So instead of the mistrial he would have received almost anywhere else, Mr. Ramos was sentenced to life in prison without the possibility of parole. Why do Louisiana and Oregon allow nonunanimous convictions? Though it’s hard to say why these laws persist, their origins are clear. Louisiana first endorsed nonunanimous verdicts for serious crimes at a constitutional convention in 1898. According to one committee chairman, the avowed purpose of that convention was to “establish the supremacy of the white race,” and the resulting document included many of the trappings of the Jim Crow era: a poll tax, a combined literacy and property ownership test, and a grandfather clause that in practice exempted white residents from the most onerous of these requirements. … Adopted in the 1930s, Oregon’s rule permitting nonunanimous verdicts can be similarly traced to the rise of the Ku Klux Klan and efforts to dilute “the influence of racial, ethnic, and religious minorities on Oregon juries.” … We took this case to decide whether the Sixth Amendment right to a jury trial—as incorporated against the States by way of the Fourteenth Amendment—requires a unanimous verdict to convict a defendant of a serious offense. … The Sixth Amendment promises that “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law.” The Amendment goes on to preserve other rights for criminal defendants but says nothing else about what a “trial by an impartial jury” entails. Still, the promise of a jury trial surely meant something— otherwise, there would have been no reason to write it down...The text and structure of the Constitution clearly suggest that the term “trial by an impartial jury” carried with it some meaning about the content and requirements of a jury trial. One of these requirements was unanimity. Wherever we might look to determine what the term “trial by an impartial jury trial” meant at the time of the Sixth Amendment’s adoption—whether it’s the common law, state practices in the founding era, or opinions and treatises written soon afterward—the answer is unmistakable. A jury must reach a unanimous verdict in order to convict. The requirement of juror unanimity emerged in 14th century England and was soon accepted as a vital right protected by the common law. … Nor is this a case where the original public meaning was lost to time and only recently recovered. This Court has, repeatedly and over many years, recognized that the Sixth Amendment requires unanimity. As early as 1898, the Court said that a defendant enjoys a “constitutional right to demand that his liberty should not be taken from him except by the joint action of the court and the unanimous verdict of a jury of twelve persons.” A few decades later, the Court elaborated that the Sixth Amendment affords a right to “a trial by jury as understood and applied at common law, . . . includ[ing] all the essential elements as they were recognized in this country and England when the Constitution was adopted.” … How, despite these seemingly straightforward principles, have Louisiana’s and Oregon’s laws managed to hang on for so long? It turns out that the Sixth Amendment’s otherwise simple story took a strange turn in 1972. That year, the Court confronted these States’ unconventional schemes for the first time—in Apodaca v. Oregon and a companion case, Johnson v. Louisiana. Ultimately, the Court could do no more than issue a badly fractured set of opinions. Four dissenting Justices would not have hesitated to strike down the States’ laws, recognizing that the Sixth Amendment requires unanimity and that this guarantee is fully applicable against the States under the Fourteenth Amendment. But a four-Justice plurality took a very different view of the Sixth Amendment. These Justices declared that the real question before them was whether unanimity serves an important “function” in “contemporary society.” Then, having reframed the question, the plurality wasted few words before concluding that unanimity’s costs outweigh its benefits in the modern era, so the Sixth Amendment should not stand in the way of Louisiana or Oregon. The ninth Member of the Court adopted a position that was neither here nor there. On the one hand, Justice Powell agreed that, as a matter of “history and precedent, . . . the Sixth Amendment requires a unanimous jury verdict to convict.” But, on the other hand, he argued that the Fourteenth Amendment does not render this guarantee against the federal government fully applicable against the States. In this way, Justice Powell doubled down on his belief in “dual-track” incorporation—the idea that a single right can mean two different things depending on whether it is being invoked against the federal or a state government. … Louisiana’s approach may not be quite as tough as trying to defend Justice Powell’s dual-track theory of incorporation, but it’s pretty close. How does the State deal with the fact this Court has said 13 times over 120 years that the Sixth Amendment does require unanimity? Or the fact that five Justices in Apodaca said the same? The best the State can offer is to suggest that all these statements came in dicta. But even supposing (without granting) that Louisiana is right and it’s dicta all the way down, why would the Court now walk away from many of its own statements about the Constitution’s meaning? And what about the prior 400 years of English and American cases requiring unanimity—should we dismiss all those as dicta too? Sensibly, Louisiana doesn’t dispute that the common law required unanimity. Instead, it argues that the drafting history of the Sixth Amendment reveals an intent by the framers to leave this particular feature behind….Undermining Louisiana’s inference about the drafting history is the fact it proves too much. If the Senate’s deletion of the word “unanimity” changed the meaning of the text that remains, then the same would seemingly have to follow for the other deleted words as well. So it’s not just unanimity that died in the Senate, but all the“other accustomed requisites” associated with the common law jury trial right—i.e., everything history might have taught us about what it means to have a jury trial. Taking the State’s argument from drafting history to its logical conclusion would thus leave the right to a “trial by jury” devoid of meaning. A right mentioned twice in the Constitution would be reduced to an empty promise. That can’t be right. … There’s another obstacle the dissent must overcome. Even if we accepted the premise that Apodaca established a precedent, no one on the Court today is prepared to say it was rightly decided, and stare decisis isn’t supposed to be the art of methodically ignoring what everyone knows to be true. Lineup: Gorsuch, joined by Ginsburg, Breyer, Sotomayor, and Kavanaugh (Parts I, II-A, III, IV-B-1). Concurrence by Gorsuch, joined by Ginsburg, Breyer, and Sotomayor (Parts II-B, IV-B-2, V). Concurrence by Gorsuch, joined by Ginsburg and Breyer (Part IV-A). Concurrence by Sotomayor (other than Part IV-A). Concurrence in part by Kavanaugh. Concurrence in the judgement by Thomas. Dissent by Alito, joined by Roberts and Kagan (other than Part III-D). The parts of Gorsuch’s opinion that were joined by 4 or less justices aren’t normally described as concurrences, but in practice that’s what they are, since they don’t command a majority of the Court and therefore are not necessarily controlling. Concurrence (Gorsuch, joined by Ginsburg, Breyer and Sotomayor (Parts II-B, IV-B-2, V)): In the years following Apodaca, both Louisiana and Oregon chose to continue allowing nonunanimous verdicts. But their practices have always stood on shaky ground. After all, while Justice Powell’s vote secured a favorable judgment for the States in Apodaca, it’s never been clear what rationale could support a similar result in future cases. Only two possibilities exist: Either the Sixth Amendment allows nonunanimous verdicts, or the Sixth Amendment’s guarantee of a jury trial applies with less force to the States under the Fourteenth Amendment. Yet, as we’ve seen, both bear their problems. In Apodaca itself, a majority of Justices—including Justice Powell—recognized that the Sixth Amendment demands unanimity, just as our cases have long said. And this Court’s precedents, both then and now, prevent the Court from applying the Sixth Amendment to the States in some mutated and diminished form under the Fourteenth Amendment. So what could we possibly describe as the “holding” of Apodaca? Really, no one has found a way to make sense of it. In later cases, this Court has labeled Apodaca an “exception,” “unusual,” and in any event “not an endorsement” of Justice Powell’s view of incorporation. At the same time, we have continued to recognize the historical need for unanimity. We’ve been studiously ambiguous, even inconsistent, about what Apodaca might mean. To its credit, Louisiana acknowledges the problem. The State expressly tells us it is not “asking the Court to accord Justice Powell’s solo opinion in Apodaca precedential force.” Instead, in an effort to win today’s case, Louisiana embraces the idea that everything is up for grabs. … In its valiant search for reliance interests, the dissent somehow misses maybe the most important one: the reliance interests of the American people. Taken at its word, the dissent would have us discard a Sixth Amendment right in perpetuity rather than ask two States to retry a slice of their prior criminal cases. Whether that slice turns out to be large or small, it cannot outweigh the interest we all share in the preservation of our constitutionally promised liberties. Indeed, the dissent can cite no case in which the one-time need to retry defendants has ever been sufficient to inter a constitutional right forever. On what ground would anyone have us leave Mr. Ramos in prison for the rest of his life? Not a single Member of this Court is prepared to say Louisiana secured his conviction constitutionally under the Sixth Amendment. No one before us suggests that the error was harmless. Louisiana does not claim precedent commands an affirmance. In the end, the best anyone can seem to muster against Mr. Ramos is that, if we dared to admit in his case what we all know to be true about the Sixth Amendment, we might have to say the same in some others. But where is the justice in that? Every judge must learn to live with the fact he or she will make some mistakes; it comes with the territory. But it is something else entirely to perpetuate something we all know to be wrong only because we fear the consequences of being right. Concurrence (Gorsuch, joined by Ginsburg and Breyer (Part IV-A)): If Louisiana’s path to an affirmance is a difficult one, the dissent’s is trickier still. The dissent doesn’t dispute that the Sixth Amendment protects the right to a unanimous jury verdict, or that the Fourteenth Amendment extends this right to state-court trials. But, it insists, we must affirm Mr. Ramos’s conviction anyway. Why? Because the doctrine of stare decisis supposedly commands it. There are two independent reasons why that answer falls short. In the first place and as we’ve seen, not even Louisiana tries to suggest that Apodaca supplies a governing precedent. Remember, Justice Powell agreed that the Sixth Amendment requires a unanimous verdict to convict, so he would have no objection to that aspect of our holding today. Justice Powell reached a different result only by relying on a dual-track theory of incorporation that a majority of the Court had already rejected (and continues to reject). And to accept that reasoning as precedential, we would have to embrace a new and dubious proposition: that a single Justice writing only for himself has the authority to bind this Court to propositions it has already rejected. This is not the rule, and for good reason—it would do more to destabilize than honor precedent. … The dissent contends that, in saying this much, we risk defying Marks v. United States. According to Marks, when “a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, ‘the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds.’” But notice that the dissent never actually gets around to telling us which opinion in Apodaca it considers to be the narrowest and controlling one under Marks—or why. So while the dissent worries that we defy a Marks precedent, it is oddly coy about where exactly that precedent might be found. The parties recognize what the dissent does not: Marks has nothing to do with this case. Unlike a Marks dispute where the litigants duel over which opinion represents the narrowest and controlling one, the parties before us accept that Apodaca yielded no controlling opinion at all. Concurrence (Sotomayor): I agree with most of the Court’s rationale, and so I join all but Part IV–A of its opinion. I write separately, however, to underscore three points. First, overruling precedent here is not only warranted, but compelled. Second, the interests at stake point far more clearly to that outcome than those in other recent cases. And finally, the racially biased origins of the Louisiana and Oregon laws uniquely matter here. Both the majority and the dissent rightly emphasize that stare decisis “has been a fundamental part of our jurisprudence since the founding.” ...But put simply, this is not a case where we cast aside precedent “simply because a majority of this Court now disagrees with” it….What matters instead is that, as the majority rightly stresses, Apodaca is a universe of one—an opinion uniquely irreconcilable with not just one, but two, strands of constitutional precedent well established both before and after the decision. … In contrast to the criminal-procedure context, “[c]onsiderations in favor of stare decisis are at their acme in cases involving property and contract rights.” Despite that fact, the Court has recently overruled precedent where the Court’s shift threatened vast regulatory and economic consequences. Janus v. State, County, and Municipal Employees, 585 U. S. ___ (2018); id., at ___ (KAGAN, J., dissenting) (slip op., at 23) (noting that the Court’s opinion called into question “thousands of . . . contracts covering millions of workers”); see South Dakota v. Wayfair, Inc., 585 U. S. ___, ___ (2018) (slip op., at 21) (noting the “legitimate” burdens that the Court’s overruling of precedent would place on vendors who had started businesses in reliance on a previous decision)...This case, by contrast, threatens no broad upheaval of private economic rights. Finally, the majority vividly describes the legacy of racism that generated Louisiana’s and Oregon’s laws. Although Ramos does not bring an equal protection challenge, the history is worthy of this Court’s attention. That is not simply because that legacy existed in the first place—unfortunately, many laws and policies in this country have had some history of racial animus—but also because the States’ legislatures never truly grappled with the laws’ sordid history in reenacting them. See generally United States v. Fordice, 505 U. S. 717, 729 (1992) (policies that are “traceable” to a State’s de jure racial segregation and that still “have discriminatory effects” offend the Equal Protection Clause). Where a law otherwise is untethered to racial bias—and perhaps also where a legislature actually confronts a law’s tawdry past in reenacting it—the new law may well be free of discriminatory taint. That cannot be said of the laws at issue here. While the dissent points to the “legitimate” reasons for Louisiana’s reenactment, post, at 3–4, Louisiana’s perhaps only effort to contend with the law’s discriminatory purpose and effects came recently, when the law was repealed altogether. Concurrence (Kavanaugh): In Apodaca v. Oregon, this Court held that state juries need not be unanimous in order to convict a criminal defendant. 406 U. S. 404 (1972). Two States, Louisiana and Oregon, have continued to use non-unanimous juries in criminal cases. Today, the Court overrules Apodaca and holds that state juries must be unanimous in order to convict a criminal defendant. I agree with the Court that the time has come to overrule Apodaca. I therefore join the introduction and Parts I, II–A, III, and IV–B–1 of the Court’s persuasive and important opinion. I write separately to explain my view of how stare decisis applies to this case. … No Member of the Court contends that the result in Apodaca is correct. But the Members of the Court vehemently disagree about whether to overrule Apodaca. Applying the three broad stare decisis considerations to this case, I agree with the Court’s decision to overrule Apodaca. First, Apodaca is egregiously wrong. The original meaning and this Court’s precedents establish that the Sixth Amendment requires a unanimous jury. … Second, Apodaca causes significant negative consequences. It is true that Apodaca is workable. But Apodaca sanctions the conviction at trial or by guilty plea of some defendants who might not be convicted under the proper constitutional rule (although exactly how many is of course unknowable)....In addition, and significant to my analysis of this case, the origins and effects of the non-unanimous jury rule strongly support overruling Apodaca. Louisiana achieved statehood in 1812. And throughout most of the 1800s, the State required unanimous juries in criminal cases. But at its 1898 state constitutional convention, Louisiana enshrined non-unanimous juries into the state constitution. Why the change? The State wanted to diminish the influence of black jurors, who had won the right to serve on juries through the Fourteenth Amendment in 1868 and the Civil Rights Act of 1875. … Third, overruling Apodaca would not unduly upset reliance interests. Only Louisiana and Oregon employ nonunanimous juries in criminal cases. To be sure, in those two States, the Court’s decision today will invalidate some non-unanimous convictions where the issue is preserved and the case is still on direct review. But that consequence almost always ensues when a criminal-procedure precedent that favors the government is overruled. Concurrence (Thomas): I agree with the Court that petitioner Evangelisto Ramos’ felony conviction by a nonunanimous jury was unconstitutional. I write separately because I would resolve this case based on the Court’s longstanding view that the Sixth Amendment includes a protection against nonunanimous felony guilty verdicts, without undertaking a fresh analysis of the meaning of “trial . . . by an impartial jury.” I also would make clear that this right applies against the States through the Privileges or Immunities Clause of the Fourteenth Amendment, not the Due Process Clause. I begin with the parties’ dispute as to whether the Sixth Amendment right to a trial by jury includes a protection against nonunanimous felony guilty verdicts. On this question, I do not write on a blank slate. As the Court acknowledges, our decisions have long recognized that unanimity is required. See ante, at 6–7. Because this interpretation is not demonstrably erroneous, I would resolve the Sixth Amendment question on that basis. … The question then becomes whether these decisions are entitled to stare decisis effect. As I have previously explained, “the Court’s typical formulation of the stare decisis standard does not comport with our judicial duty under Article III because it elevates demonstrably erroneous decisions—meaning decisions outside the realm of permissible interpretation—over the text of the Constitution and other duly enacted federal law.” There is considerable evidence that the phrase “trial . . . by . . . jury” in the Sixth Amendment was understood since the founding to require that a felony guilty verdict be unanimous. Because our precedents are thus not outside the realm of permissible interpretation, I will apply them. … The remaining question is whether that right is protected against the States. In my view, the Privileges or Immunities Clause provides this protection. I do not adhere to this Court’s decisions applying due process incorporation, including Apodaca and—it seems—the Court’s opinion in this case. The Privileges or Immunities Clause provides that “[n]o State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” Amdt. 14, §1. At the time of the Fourteenth Amendment’s ratification, “the terms ‘privileges’ and ‘immunities’ had an established meaning as synonyms of ‘rights.’” “[T]he ratifying public understood the Privileges or Immunities Clause to protect constitutionally enumerated rights” against abridgment by the States. The Sixth Amendment right to a trial by jury is certainly a constitutionally enumerated right. The Court, however, has made the Due Process Clause serve the function that the Privileges or Immunities Clause should serve. Although the Privileges or Immunities Clause grants “United States citizens a certain collection of rights—i.e., privileges or immunities—attributable to that status,” the Court has interpreted the Clause “quite narrowly.” Perhaps to compensate for this limited view of the Privileges or Immunities Clause, it has incorporated individual rights against the States through the Due Process Clause. Due process incorporation is a demonstrably erroneous interpretation of the Fourteenth Amendment...I “decline to apply the legal fiction” of due process incorporation...I would accept petitioner’s invitation to decide this case under the Privileges or Immunities Clause. … The evidence that I have recounted is enough to establish that our previous interpretations of the Sixth Amendment are not demonstrably erroneous. What is necessary, however, is a clear understanding of the means by which the Sixth Amendment right applies against the States. We should rely on the Privileges or Immunities Clause, not the Due Process Clause or the Fourteenth Amendment in some vague sense. Accordingly, I concur only in the judgment. Dissent (Alito, joined by Roberts and Kagan (other than Part III-D)): The doctrine of stare decisis gets rough treatment in today’s decision. Lowering the bar for overruling our precedents, a badly fractured majority casts aside an important and long-established decision with little regard for the enormous reliance the decision has engendered. If the majority’s approach is not just a way to dispose of this one case, the decision marks an important turn. Nearly a half century ago in Apodaca v. Oregon, 406 U. S. 404 (1972), the Court held that the Sixth Amendment permits non-unanimous verdicts in state criminal trials, and in all the years since then, no Justice has even hinted that Apodaca should be reconsidered. Understandably thinking that Apodaca was good law, the state courts in Louisiana and Oregon have tried thousands of cases under rules that permit such verdicts. But today, the Court does away with Apodaca and, in so doing, imposes a potentially crushing burden on the courts and criminal justice systems of those States. The Court, however, brushes aside these consequences and even suggests that the States should have known better than to count on our decision. To add insult to injury, the Court tars Louisiana and Oregon with the charge of racism for permitting nonunanimous verdicts—even though this Court found such verdicts to be constitutional and even though there are entirely legitimate arguments for allowing them. I would not overrule Apodaca. Whatever one may think about the correctness of the decision, it has elicited enormous and entirely reasonable reliance. And before this Court decided to intervene, the decision appeared to have little practical importance going forward. Louisiana has now abolished non-unanimous verdicts, and Oregon seemed on the verge of doing the same until the Court intervened. … Too much public discourse today is sullied by ad hominem rhetoric, that is, attempts to discredit an argument not by proving that it is unsound but by attacking the character or motives of the argument’s proponents. The majority regrettably succumbs to this trend. At the start of its opinion, the majority asks this rhetorical question: “Why do Louisiana and Oregon allow nonunanimous convictions?” And the answer it suggests? Racism, white supremacy, the Ku Klux Klan. Non-unanimous verdicts, the Court implies, are of a piece with Jim Crow laws, the poll tax, and other devices once used to disfranchise AfricanAmericans. Ibid. If Louisiana and Oregon originally adopted their laws allowing non-unanimous verdicts for these reasons, that is deplorable, but what does that have to do with the broad constitutional question before us? The answer is: nothing. For one thing, whatever the reasons why Louisiana and Oregon originally adopted their rules many years ago, both States readopted their rules under different circumstances in later years. … Some years ago the British Parliament enacted a law allowing non-unanimous verdicts. Was Parliament under the sway of the Klan? The Constitution of Puerto Rico permits non-unanimous verdicts. Were the framers of that Constitution racists? Non-unanimous verdicts were once advocated by the American Law Institute and the American Bar Association. Was their aim to promote white supremacy? And how about the prominent scholars who have taken the same position? Racists all? Of course not. So all the talk about the Klan, etc., is entirely out of place. … I begin with the question whether Apodaca was a precedent at all. It is remarkable that it is even necessary to address this question, but in Part IV–A of the principal opinion, three Justices take the position that Apodaca was never a precedent. The only truly fitting response to this argument is: “Really?” Consider what it would mean if Apodaca was never a precedent. It would mean that the entire legal profession was fooled for the past 48 years. Believing that Apodaca was a precedent, the courts of Louisiana and Oregon tried thousands of cases under rules allowing conviction by a vote of 11 to 1 or 10 to 2, and appellate courts in those States upheld these convictions based on Apodaca. … What do our three colleagues say in response? They begin by suggesting that Louisiana conceded that Apodaca is not a precedent. This interpretation of the State’s position is questionable, but even if Louisiana made that concession, how could that settle the matter? What about Oregon, the only State that still permits nonunanimous verdicts? Oregon certainly did not make such a concession. On the contrary, it submitted an amicus brief arguing strenuously that Apodaca is a precedent and that it should be retained. And what about any other State that might want to allow such verdicts in the future? So the majority’s reliance on Louisiana’s purported concession simply will not do. … Apodaca clearly was a precedent, and if the Court wishes to be done with it, it must explain why overruling Apodaca is consistent with the doctrine of stare decisis. … Up to this point, I have discussed the majority’s reasons for overruling Apodaca, but that is only half the picture. What convinces me that Apodaca should be retained are the enormous reliance interests of Louisiana and Oregon. For 48 years, Louisiana and Oregon, trusting that Apodaca is good law, have conducted thousands and thousands of trials under rules allowing non-unanimous verdicts. Now, those States face a potential tsunami of litigation on the jury unanimity issue. https://www.supremecourt.gov/opinions/19pdf/18-5924_n6io.pdf
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Apr 20, 2020 19:45
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THRYV, INC., FKA DEX MEDIA, INC., PETITIONER v. CLICK-TO-CALL TECHNOLOGIES, LP, ET AL Holding / Majority Opinion (Ginsburg): Inter partes review is an administrative process in which a patent challenger may ask the U. S. Patent and Trademark Office (PTO) to reconsider the validity of earlier granted patent claims. This case concerns a statutorily prescribed limitation of the issues a party may raise on appeal from an inter partes review proceeding. When presented with a request for inter partes review, the agency must decide whether to institute review. Among other conditions set by statute, if the request comes more than a year after suit against the requesting party for patent infringement, “[a]n inter partes review may not be instituted.” “The determination by the [PTO] Director whether to institute an inter partes review under this section shall be final and nonappealable.” In this case, the agency instituted inter partes review in response to a petition from Thryv, Inc., resulting in the cancellation of several patent claims. Patent owner Click-toCall Technologies, LP, appealed, contending that Thryv’s petition was untimely under §315(b). The question before us: Does §314(d)’s bar on judicial review of the agency’s decision to institute inter partes review preclude Click-to-Call’s appeal? Our answer is yes. The agency’s application of §315(b)’s time limit, we hold, is closely related to its decision whether to institute inter partes review and is therefore rendered nonappealable by §314(d). … We granted certiorari to resolve the reviewability issue, 587 U. S. ___ (2019), and now vacate the Federal Circuit’s judgment and remand with instructions to dismiss the appeal for lack of appellate jurisdiction. To determine whether §314(d) precludes judicial review of the agency’s application of §315(b)’s time prescription, we begin by defining §314(d)’s scope. Section 314(d)’s text renders “final and nonappealable” the “determination by the Director whether to institute an inter partes review under this section.” That language indicates that a party generally cannot contend on appeal that the agency should have refused “to institute an inter partes review.” We held as much in Cuozzo. There, a party contended on appeal that the agency should have refused to institute inter partes review because the petition failed §312(a)(3)’s requirement that the grounds for challenging patent claims must be identified “with particularity.” This “contention that the Patent Office unlawfully initiated its agency review is not appealable,” we held, for “that is what §314(d) says.” … We reserved judgment in Cuozzo, however, on whether §314(d) would bar appeals reaching well beyond the decision to institute inter partes review. … We therefore ask whether a challenge based on §315(b) ranks as an appeal of the agency’s decision “to institute an inter partes review.” §314(d). We need not venture beyond Cuozzo’s holding that §314(d) bars review at least of matters “closely tied to the application and interpretation of statutes related to” the institution decision, , for a §315(b) challenge easily meets that measurement. Section 315(b)’s time limitation is integral to, indeed a condition on, institution. After all, §315(b) sets forth a circumstance in which “[a]n inter partes review may not be instituted.” Even Click-to-Call and the Court of Appeals recognize that §315(b) governs institution. … Because §315(b) expressly governs institution and nothing more, a contention that a petition fails under §315(b) is a contention that the agency should have refused “to institute an inter partes review.” … (Thomas and Alito do not join this paragraph) The AIA’s purpose and design strongly reinforce our conclusion. By providing for inter partes review, Congress, concerned about overpatenting and its diminishment of competition, sought to weed out bad patent claims efficiently.…Allowing §315(b) appeals would tug against that objective, wasting the resources spent resolving patentability and leaving bad patents enforceable. A successful §315(b) appeal would terminate in vacatur of the agency’s decision; in lieu of enabling judicial review of patentability, vacatur would unwind the agency’s merits decision. … Click-to-Call advances a narrower reading of §314(d). In Click-to-Call’s view, which the dissent embraces, the bar on judicial review applies only to the agency’s threshold determination under §314(a) of the question whether the petitioner has a reasonable likelihood of prevailing. Section 314(d) addresses the “determination by the Director whether to institute inter partes review under this section” (emphasis added), and, Click-to-Call maintains, §314(a) contains “the only substantive determination referenced in” the same section as §314(d). Brief for Respondent Click-to-Call 16. This interpretation, Click-to-Call argues, supplies a clear rule consonant with the presumption favoring judicial review. Cuozzo is fatal to Click-to-Call’s interpretation. Section 314(d)’s review bar is not confined to the agency’s application of §314(a), for in Cuozzo we held unreviewable the agency’s application of §312(a)(3). Far from limiting the appeal bar to §314(a) and “nothing else” as Click-to-Call urges, Brief for Respondent 29, the Court’s opinion in Cuozzo explained that the bar extends to challenges grounded in “statutes related to” the institution decision. … Click-to-Call presses an alternative reason why the Board’s ruling on its §315(b) objection is appealable. The Board’s final written decision addressed the §315(b) issue, so Click-to-Call argues that it may appeal under §319, which authorizes appeal from the final written decision. But even labeled as an appeal from the final written decision, Click-to-Call’s attempt to overturn the Board’s §315(b) ruling is still barred by §314(d). Because §315(b)’s sole office is to govern institution, Click-to-Call’s contention remains, essentially, that the agency should have refused to institute inter partes review. As explained, §314(d) makes that contention unreviewable. Lineup: Ginsburg, joined by Roberts, Breyer, Kagan, Kavanaugh, and Thomas and Alito (other than Part III-C). Dissent by Gorsuch, joined by Sotomayor as to Parts I-IV. Dissent (Gorsuch, joined by Sotomayor as to Parts I-IV): Today the Court takes a flawed premise—that the Constitution permits a politically guided agency to revoke an inventor’s property right in an issued patent—and bends it further, allowing the agency’s decision to stand immune from judicial review. Worse, the Court closes the courthouse not in a case where the patent owner is merely unhappy with the merits of the agency’s decision but where the owner claims the agency’s proceedings were unlawful from the start. Most remarkably, the Court denies judicial review even though the government now concedes that the patent owner is right and this entire exercise in property-taking-by-bureaucracy was forbidden by law. It might be one thing if Congress clearly ordained this strange result. But it did not. The relevant statute, the presumption of judicial review, and our precedent all point toward allowing, not forbidding, inventors their day in court. Yet, the Court brushes past these warning signs and, in the process, carries us another step down the road of ceding core judicial powers to agency officials and leaving the disposition of private rights and liberties to bureaucratic mercy https://www.supremecourt.gov/opinions/19pdf/18-916_f2ah.pdf ATLANTIC RICHFIELD CO. v. CHRISTIAN ET AL. Holding / Majority Opinion (Roberts): For nearly a century, the Anaconda Copper Smelter in Butte, Montana contaminated an area of over 300 square miles with arsenic and lead. Over the past 35 years, the Environmental Protection Agency has worked with the current owner of the smelter, Atlantic Richfield Company, to implement a cleanup plan under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980. EPA projects that the cleanup will continue through 2025. A group of 98 landowners sued Atlantic Richfield in Montana state court for common law nuisance, trespass, and strict liability. Among other remedies, the landowners sought restoration damages, which under Montana law must be spent on rehabilitation of the property. The landowners’ proposed restoration plan includes measures beyond those the agency found necessary to protect human health and the environment. We consider whether the Act strips the Montana courts of jurisdiction over the landowners’ claim for restoration damages and, if not, whether the Act requires the landowners to seek EPA approval for their restoration plan. … The [Comprehensive Environmental Response, Compensation, and Liability Act] directs EPA to compile and annually revise a prioritized list of contaminated sites for cleanup, commonly known as Superfund sites. EPA may clean those sites itself or compel responsible parties to perform the cleanup. If the Government performs the cleanup, it may recover its costs from responsible parties. Responsible parties are jointly and severally liable for the full cost of the cleanup, but may seek contribution from other responsible parties. … … After Congress passed the Superfund statute in 1980, Atlantic Richfield faced strict and retroactive liability for the many tons of arsenic and lead that Anaconda had spewed across the area over the previous century. In 1983, EPA designated an area of more than 300 square miles around the smelters as one of the inaugural Superfund sites. 48 Fed. Reg. 40667. In the 35 years since, EPA has managed an extensive cleanup at the site, working with Atlantic Richfield to remediate more than 800 residential and commercial properties; remove 10 million cubic yards of tailings, mine waste, and contaminated soil; cap in place 500 million cubic yards of waste over 5,000 acres; and reclaim 12,500 acres of land. EPA, Superfund Priority “Anaconda” 9 (Apr. 2018), https://semspub.epa.gov/work/08/100003986.pdf. To date, Atlantic Richfield estimates that it has spent roughly $450 million implementing EPA’s orders. More work remains. As of 2015, EPA’s plan anticipated cleanup of more than 1,000 additional residential yards, revegetation of 7,000 acres of uplands, removal of several waste areas, and closure of contaminated stream banks and railroad beds. … In 2008, a group of 98 owners of property within the Superfund site filed this lawsuit against Atlantic Richfield in Montana state court, asserting trespass, nuisance, and strict liability claims under state common law. The landowners sought restoration damages, among other forms of relief. … The landowners here propose a restoration plan that goes beyond EPA’s own cleanup plan, which the agency had found “protective of human health and the environment.” For example, the landowners propose a maximum soil contamination level of 15 parts per million of arsenic, rather than the 250 parts per million level set by EPA. And the landowners seek to excavate offending soil within residential yards to a depth of two feet rather than EPA’s chosen depth of one. The landowners also seek to capture and treat shallow groundwater through an 8,000-foot long, 15-foot deep, and 3-foot wide underground permeable barrier, a plan the agency rejected as costly and unnecessary to secure safe drinking water. … The Montana Supreme Court rejected Atlantic Richfield’s argument that §113 stripped the Montana courts of jurisdiction over the landowners’ claim for restoration damages. The court recognized that §113 strips federal courts (and, it was willing to assume, state courts) of jurisdiction to review challenges to EPA cleanup plans. But the Montana Supreme Court reasoned that the landowners’ plan was not such a challenge because it would not “stop, delay, or change the work EPA is doing.” The landowners were “simply asking to be allowed to present their own plan to restore their own private property to a jury of twelve Montanans who will then assess the merits of that plan.” … Congress has authorized this Court to review “[f]inal judgments or decrees rendered by the highest court of a State. ...The landowners contend that, because the Montana Supreme Court allowed the case to proceed to trial, its judgment was not final and we lack jurisdiction. But the Montana Supreme Court exercised review in this case through a writ of supervisory control. Under Montana law, a supervisory writ proceeding is a self-contained case, not an interlocutory appeal....It is the nature of the Montana proceeding, not the issues the state court reviewed, that establishes our jurisdiction. We likewise find that the Act does not strip the Montana courts of jurisdiction over this lawsuit. It deprives state courts of jurisdiction over claims brought under the Act. But it does not displace state court jurisdiction over claims brought under other sources of law. … Although the Montana Supreme Court answered the jurisdictional question correctly, the Court erred by holding that the landowners were not potentially responsible parties under the Act and therefore did not need EPA approval to take remedial action. Section 122(e)(6), titled “Inconsistent response action,” provides that “[w]hen either the President, or a potentially responsible party . . . has initiated a remedial investigation and feasibility study for a particular facility under this chapter, no potentially responsible party may undertake any remedial action at the facility unless such remedial action has been authorized by the President.” Both parties agree that this provision would require the landowners to obtain EPA approval for their restoration plan if the landowners qualify as potentially responsible parties. To determine who is a potentially responsible party, we look to the list of “covered persons” in §107, the liability section of the Act. §9607(a). “Section 107(a) lists four classes of potentially responsible persons (PRPs) and provides that they ‘shall be liable’ for, among other things, ‘all costs of removal or remedial action incurred by the United States Government.’” The first category under §107(a) includes any “owner” of “a facility.” “Facility” is defined to include “any site or area where a hazardous substance has been deposited, stored, disposed of, or placed, or otherwise come to be located.” Arsenic and lead are hazardous substances. Because those pollutants have “come to be located” on the landowners’ properties, the landowners are potentially responsible parties. ... Interpreting “potentially responsible parties” to include owners of polluted property reflects the Act’s objective to develop, as its name suggests, a “Comprehensive Environmental Response” to hazardous waste pollution. … In the absence of EPA approval of the current restoration plan, we have no occasion to entertain Atlantic Richfield’s claim that the Act otherwise preempts the plan. The judgment of the Montana Supreme Court is affirmed in part and vacated in part. The case is remanded for further proceedings not inconsistent with this opinion. Lineup: Roberts, unanimous (Parts I and II-A), joined by Thomas, Ginsburg, Breyer, Sotomayor, Kagan, Gorsuch, and Kavanaugh (Part II-B), and joined by Ginsburg, Breyer, Alito, Sotomayor, Kagan, and Kavanaugh (Part III). Concurrence in part and Dissent in part by Alito. Concurrence in part and Dissent in part by Gorsuch, joined by Thomas. Concurrence in part and Dissent in part (Alito): I agree with the Court that the judgment below must be reversed, and I join all of the Court’s opinion except Part II–B. I thus agree with the Court that we possess jurisdiction to decide this case. See ante, at 8. I also agree that the landowners are potentially responsible parties under §122(e)(6) of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA) and, as a result, cannot bring their Montana restoration damages claim without the consent of the Environmental Protection Agency (EPA). At this point, however, I am not willing to endorse the Court’s holding in Part II–B that state courts have jurisdiction to entertain “challenges” to EPA-approved CERCLA plans. I would not decide that question because it is neither necessary nor prudent for us to do so. As I understand the Court’s opinion, the Montana Supreme Court has two options on remand: (1) enter a stay to allow the landowners to seek EPA approval or (2) enter judgment against the landowners on their restoration damages claim without prejudice to their ability to refile if they obtain EPA approval. Either way, the case cannot proceed without the EPA’s blessing. And because the EPA has submitted multiple filings indicating that it believes that the landowners’ plan presents serious environmental risks, it is likely that the EPA will not approve that plan, and the case will then die. If that happens, the question of the state courts’ jurisdiction will be academic. Alternatively, if the EPA approves the landowners’ plan, either in full or to a degree that they find satisfactory, they may not wish to press this litigation. And if they do choose to go forward, the question of state-court jurisdiction can be decided at that time. For these reasons, there is no need to reach out and decide the question now, and there are good reasons not to do so. … Section 113 may simply be a piece of very bad draftsmanship, with pieces that cannot be made to fit together. Or it may be a puzzle with a solution that neither the parties, the Court, nor I have been able to solve. In a later case, briefing and argument may provide answers that have thus far eluded us. Since we are not required to attempt an answer in this case, the prudent course is to hold back. Concurrence in part and Dissent in part (Gorsuch, joined by Thomas): Now[] Atlantic Richfield wants us to call a halt to the [state law] proceedings. The company insists that CERCLA preempts and prohibits common law tort suits like this one. On Atlantic Richfield’s telling, CERCLA even prevents private landowners from voluntarily remediating their own properties at their own expense. No one may do anything in 300 square miles of Montana, the company insists, without first securing the federal government’s permission. But what in the law commands that result? Everything in CERCLA suggests that it seeks to supplement, not supplant, traditional state law remedies and promote, not prohibit, efforts to restore contaminated land. Congress hardly could have been clearer. It stated that, “[n]othing in this [Act] shall be construed or interpreted as preempting any State from imposing any additional liability or requirements with respect to the release of hazardous substances within such State.” It added that “[n]othing in this [Act] shall affect or modify in any way the obligations or liabilities of any person under other Federal or State law, including common law, with respect to releases of hazardous substances or other pollutants or contaminants.” And it said again that “[t]his [Act] does not affect or otherwise impair the rights of any person under Federal, State, or common law, except with respect to the timing of review as provided” elsewhere in provisions that even the Court today does not invoke as limits on recovery here. Three times Congress made its point as plainly as anyone might. … Atlantic Richfield directs our attention to §122(e)(6). It’s a provision buried in a section captioned “Settlements.” The section outlines the process private parties must follow to negotiate a settlement and release of CERCLA liability with the federal government. Subsection (e)(6) bears the title “Inconsistent response action” and states that, “[w]hen either the President, or a potentially responsible party pursuant to an administrative order or consent decree under this chapter, has initiated a remedial investigation and feasibility study for a particular facility under this chapter, no potentially responsible party may undertake any remedial action at the facility unless such remedial action has been authorized by the President.” So even read for all its worth, this provision only bars those “potentially responsible” to the federal government from initiating cleanup efforts without prior approval. To get where it needs to go, Atlantic Richfield must find some way to label the innocent landowners here “potentially responsible part[ies]” on the hook for cleanup duties with the federal government. They are hardly that. When interpreting a statute, this Court applies the law’s ordinary public meaning at the time of the statute’s adoption, here 1980. To be “potentially responsible” for something meant then, as it does today, that a person could possibly be held accountable for it; the outcome is capable of happening. And there is simply no way the landowners here are potentially, possibly, or capable of being held liable by the federal government for anything. In the first place, the federal government never notified the landowners that they might be responsible parties, as it must under §122(e)(1). Additionally, everyone admits that the period allowed for bringing a CERLCA claim against them has long since passed under §113(g)(2)(B). On any reasonable account, the landowners are potentially responsible to the government for exactly nothing. … While I agree with the Court’s assessment in Parts I and II of its opinion that we have jurisdiction to hear this case, I cannot agree with its ruling on the merits in Part III. Departing from CERCLA’s terms in this way transforms it from a law that supplements state environmental restoration efforts into one that prohibits them. Along the way, it strips away ancient common law rights from innocent landowners and forces them to suffer toxic waste in their backyards, playgrounds, and farms. Respectfully, that is not what the law was written to do; that is what it was written to prevent. https://www.supremecourt.gov/opinions/19pdf/17-1498_8mjp.pdf
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Apr 20, 2020 19:45
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FlamingLiberal posted:Kagan dissented for some reason Mr. Nice! posted:My personal guess is because of the large amounts of the opinion dedicated to stare decisis and how much the majority can and should ignore past precedent. In essence this ruling makes it easier to strike down other SCOTUS cases. She did not write separately, so I do not know, though. She did not join on the section of the dissent calling Janus and Citizen's United good cases, though. I bet on the  angle - read that part of the dissent she joined on to. Also, I'm surprised the court bothered with Louisiana having abolished non-unanimous juries already.
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Apr 20, 2020 19:46
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ulmont posted:To add insult to injury, the Court tars Louisiana and Oregon with the charge of racism for permitting nonunanimous verdicts—even though this Court found such verdicts to be constitutional and even though there are entirely legitimate arguments for allowing them. Oh dear, how could anyone accuse 19th-century lawmakers in Louisiana and Oregon of racism?
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Apr 20, 2020 21:06
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"Non-unanimous verdicts, the Court implies, are of a piece with Jim Crow laws, the poll tax, and other devices once used to disfranchise AfricanAmericans. Ibid. If Louisiana and Oregon originally adopted their laws allowing non-unanimous verdicts for these reasons, that is deplorable, but what does that have to do with the broad constitutional question before us? The answer is: nothing." Hmm, tell me more, guy who has spent his entire career trying to resurrect Jim Crow voting laws by pretending racism is over.
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Apr 20, 2020 21:19
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Kazak_Hstan posted:"Non-unanimous verdicts, the Court implies, are of a piece with Jim Crow laws, the poll tax, and other devices once used to disfranchise AfricanAmericans. Ibid. If Louisiana and Oregon originally adopted their laws allowing non-unanimous verdicts for these reasons, that is deplorable, but what does that have to do with the broad constitutional question before us? The answer is: nothing."
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Apr 20, 2020 21:44
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ok yeah the poll tax was adopted along with the rest of the Jim Crow laws but hell it's still a good idea -Supreme Court Justices, apparently 
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Apr 20, 2020 22:59
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Goddamn liberal activist judges. We need more god-fearing red-blooded conservatives on the court! 
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Apr 20, 2020 23:39
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Every time I read Thomas arguing for P&I incorporation I see that Onion article about the worst person you know making a good point (fortunately it's on an issue that doesn't really matter instead of something actually substantive).
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Apr 21, 2020 00:12
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He’s also basically right about stare decisis. The Court’s taken a rule that’s basically “don’t keep changing your mind every time you see the same case” and turned it into a really hosed up excuse for not fixing mistakes that are actively hurting people.
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Apr 21, 2020 01:33
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rjmccall posted:He’s also basically right about stare decisis. The Court’s taken a rule that’s basically “don’t keep changing your mind every time you see the same case” and turned it into a really hosed up excuse for not fixing mistakes that are actively hurting people. Stare decisis is part of the most basic criteria for a fair system that exists: treat similarly situated people (i.e., similar cases) alike. Yes, in some cases, a judge should overturn a bad decision. However, if a decision is in a "I disagree, but I see how the past court got there and it's a not obviously wrong decision" zone, then absolutely the judge should leave it alone. ...what not obviously wrong means, of course, is in the details.
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Apr 21, 2020 03:54
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It's also a principle that allows common law systems to actually function reliably. Even with kind of duty decisions, there is a huge societal value to bring able to predict the outcome of bringing a case to trial in terms of planning and being able to invest in future endeavours. Hell even in the situation of avoiding people spending huge amounts of money in legal fees over everything and jamming up the court system. If you say stare decisis is bag or just optimal in all cases, the outcome of your case is now dependent on the individual judge that is hearing it. If it's in anyway political, there result of your case is now not a matter of how similar your situation is to previous cases but what the odds are of getting a judge who's personal politics lines up with your case. And then the odds that an appeal court will find for you and so on combined with how likely you the other side are to be able to keep affording the legal fees you incur. Things like being able to trust a contract will be enforceable or knowing exactly what tax status you or your employees have are actually pretty loving useful and freeing the judiciary from the shackles of stare decisis is only useful if you are an ideological zealot and you think that you've got the numbers on your side to massively tilt the whole system to your side. I kind of hate it but there is a difference to stopping a continuing injustice and opening the door to every person with a criminal conviction having a solid case to overturn that conviction. If enough of them take that up you face the possibility of the court system being overwhelmed and choosing between hearing those appeals and fresh criminal trials that mean people end up spending a lot more time in pre trial detention. In a perfect world yes but if judges are considering morality they should be trying to pick an outcome that maximises societal benefit imo.
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Apr 21, 2020 08:30
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I saw the majority opinion hinged on the common law precedent. Does the fact that Louisiana runs on the civil code instead have any bearing? Do appellate courts and the Supreme Court ever notice or care about the difference?
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Apr 21, 2020 09:08
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The federal courts will not defer to state jurisprudence on questions of constitutional law. Lousiana's choice of legal system has no bearing on the meaning of the U.S. constitution.
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Apr 21, 2020 09:21
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Kazak_Hstan posted:The federal courts will not defer to state jurisprudence on questions of constitutional law. Lousiana's choice of legal system has no bearing on the meaning of the U.S. constitution. Also the differences are less and less with each passing year. For just one example Louisiana has adopted the Uniform Commercial Code, meaning all contract law for the sale of goods is the same as anywhere else in the US (more or less, but no different from the differences between the other states).
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Apr 21, 2020 15:23
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Fuschia tude posted:I saw the majority opinion hinged on the common law precedent. Does the fact that Louisiana runs on the civil code instead have any bearing? Do appellate courts and the Supreme Court ever notice or care about the difference? It's almost never going to be relevant to the Supreme Court because they are rarely dealing with pure state law issues as opposed to issues involving a conflict between state and federal laws. District Courts and whichever circuit court is stuck with Louisiana might have to care occasionally because state matters can be removed to federal courts under a few circumstances but it's incredibly unlikely the SC would grant cert on any such matters.
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Apr 22, 2020 08:37
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With Roberts writing the DACA decision is there any chance he at least splits the baby and rules something that doesn’t totally gently caress the 700k people already living in the US?
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Apr 26, 2020 22:41
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Shimrra Jamaane posted:With Roberts writing the DACA decision is there any chance he at least splits the baby and rules something that doesn’t totally gently caress the 700k people already living in the US? Maybe if we're lucky and whatever gave him his concussion before ruling in favor of the ACA managed to fall on his head again.
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Apr 27, 2020 05:34
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SCOTUS ruled 8-1 today that insurance companies can sue the Federal government for money they are owed under ACA if they lose money in a risk corridor program. Alito is trying to argue that everything in ACA is invalid.
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Apr 27, 2020 16:45
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Weird that seems more like a stand Thomas would take
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Apr 27, 2020 16:56
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I just realized I'm still elated over Scalia's death. Opinions used to be so much more infuriating with him around.
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Apr 27, 2020 17:00
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