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Potato Salad posted:Yes, they should stack the court. I mean it wouldn't be stacking since there are still only 9 justices. I know the center wouldn't necessarily go for it, but it would be legal right?
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Apr 7, 2022 19:31
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Trevorrrrrrrrrrrrr posted:I mean it wouldn't be stacking since there are still only 9 justices. I know the center wouldn't necessarily go for it, but it would be legal right? The size of the Supreme Court is a completely arbitrary invention by Congress in the first place.
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Apr 7, 2022 19:39
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Groovelord Neato posted:Jackson confirmed with Romney, Collins, and Murkowski joining the Democrats Dissent by THOMAS, J.
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Apr 7, 2022 19:41
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Rust Martialis posted:Dissent by THOMAS, J. MY ORIGINALISM WON'T ALLOW FOR BLACK PEOPLE TO SERVE ON THE COUR.... MALFUNCTION Rebooting (brought to you buy foxnews)
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Apr 7, 2022 20:04
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Wouldn't it be funny if Breyer was like, "You know what? I don't think I'll retire after all."
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Apr 7, 2022 21:16
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Crows Turn Off posted:Wouldn't it be funny if Breyer was like, "You know what? I don't think I'll retire after all." It’d honestly be way funnier if Biden/Schumer started nominating/confirming replacements for the conservative judges who haven’t retired yet.
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Apr 7, 2022 21:33
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Groovelord Neato posted:Jackson confirmed with Romney, Collins, and Murkowski joining the Democrats I am a cynic who knows this won't change much with a 6-3 court but even I had a smile at this moment at the end https://www.c-span.org/video/?c5010107/user-clip-kbj-confirmed After the non-Romney Republicans stormed off like whiny children: "Madame President, I happily note the absence of a quorum"
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Apr 7, 2022 22:13
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Kalman posted:It’d honestly be way funnier if Biden/Schumer started nominating/confirming replacements for the conservative judges who haven’t retired yet. Gorsuch is on the court illegitimately, start with him.
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Apr 7, 2022 23:00
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Youth Decay posted:I am a cynic who knows this won't change much with a 6-3 court but even I had a smile at this moment at the end https://www.c-span.org/video/?c5010107/user-clip-kbj-confirmed Yeah that was a great line gotta hand it to Chuck.
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Apr 8, 2022 14:00
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6-3 police can be sued for false charges, someone explain this to me lol
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Apr 9, 2022 03:12
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Specifically, whats the catch
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Apr 9, 2022 03:13
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Woops double
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Apr 9, 2022 03:15
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They have violated the 4th. Now they'll turn around and get qualified immunity for doing so.
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Apr 9, 2022 03:15
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mandatory lesbian posted:Specifically, whats the catch You’ll be found mysteriously killed before you can collect any settlement.
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Apr 9, 2022 03:43
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mandatory lesbian posted:Specifically, whats the catch The explicitly didn't rule on whether QI can be applied (spoiler: It'll be applied and the cops will get away with it).
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Apr 9, 2022 03:56
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mandatory lesbian posted:Specifically, whats the catch Donald trump can now sue the ny ag after not bringing charges.
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Apr 9, 2022 04:39
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Proust Malone posted:Donald trump can now sue the ny ag after not bringing charges. I AM GRANDO posted:You’ll be found mysteriously killed before you can collect any settlement. Harold Fjord posted:Now they'll turn around and get qualified immunity for doing so.
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Apr 9, 2022 07:07
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Thank you!
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Apr 9, 2022 13:30
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nine-gear crow posted:Gorsuch is on the court illegitimately, start with him. The entire Supreme Court is illegitimate. Biden and Dems should be stacking the courts and removing justices that are anti-human rights. Supporting the current Supreme Court and their rulings is willful compliance with the march towards fascism. (USER WAS PUT ON PROBATION FOR THIS POST)
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Apr 9, 2022 14:30
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https://twitter.com/ChadPergram/status/1513564043121987584
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Apr 11, 2022 18:45
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So this means they'll rule in favor of any government lock downs and restrictions for health concerns, right? ...oh.
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Apr 11, 2022 20:57
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Evil Fluffy posted:So this means they'll rule in favor of any government lock downs and restrictions for health concerns, right? It’s a personal choice! (By whatever unit of government/private ownership they control)
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Apr 11, 2022 22:45
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mandatory lesbian posted:6-3 police can be sued for false charges, someone explain this to me lol Thompson's probably still going to lose, it's just a question of how. Before this decision the trial judge actually denied qualified immunity; Thompson got a jury trial on the rest of his claims (unlawful entry, excessive force, false arrest, etc.) and lost all of them, and they're not part of the appeal. For one claim - malicious prosecution - the judge ruled that it couldn't go forward because his criminal case had to end a certain way first. SCOTUS reversed and removed that procedural hurdle, so in the future most dismissals of a criminal case will count and allow a malicious prosecution suit. (It won't affect Trump and the NY AG because you can't sue for malicious prosecution if nobody initiates a prosecution against you, and prosecutors have absolute immunity anyway.) They didn't touch any of the underlying merits, which go back to the trial court. If the first jury found that PC existed to arrest Thompson, that might torpedo his malicious prosecution claim before it goes anywhere. If it goes to trial, there's a good chance he loses. If he wins at trial, an appellate court probably reverses the denial of QI.
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Apr 12, 2022 00:46
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https://twitter.com/steve_vladeck/status/1516047481704001536?s=20&t=tb1sHTZdvAwcOFl9zeCfNQ
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Apr 18, 2022 15:36
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I see the SCOTUS is back to its usual, darkest timeline self.
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Apr 18, 2022 20:56
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Evil Fluffy posted:I see the SCOTUS is back to its usual, darkest timeline self. Whitest timeline, surely
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Apr 19, 2022 05:34
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We all know about how much SCOTUS matters and what they've been doing. But before we start talking about how the voting public would react to changes in the structure of SCOTUS, we should remind ourselves https://twitter.com/lxeagle17/status/1515542482892730375 https://twitter.com/PollsAndVotes/status/1515522634527776773 https://twitter.com/PollsAndVotes/status/1515533057930977281 https://twitter.com/jamisonfoser/status/1515534826643722244 The average voter knows goddamn nothing about SCOTUS. I'd argue they know less than nothing about SCOTUS.
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Apr 20, 2022 20:55
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Lol @ the one inversion where more republicans know 5 justices than democrats, assuming it was the result of propaganda about which are the "good ones" or "bad ones" whenever this data was collected.
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Apr 20, 2022 21:20
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"And Independents are clueless" really works with any subject.
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Apr 20, 2022 21:46
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It doesn’t really matter how many justices people know - most will care about court restructuring exactly as much as their chosen propaganda outlet or pundit tells them to (and in the indicated direction).
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Apr 20, 2022 21:58
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Stickman posted:It doesn’t really matter how many justices people know - most will care about court restructuring exactly as much as their chosen propaganda outlet or pundit tells them to (and in the indicated direction). People who can't name a single justice, or even only one or two of them, probably aren't consuming much political or new media at all. You'd pick that up entirely by osmosis.
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Apr 20, 2022 22:16
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 Opinion! One of five from April 21. More to come later.City of Austin v. Reagan National Advertising of Austin, LLC TLDR: The City of Austin’s distinction between signs on-premises (i.e., advertising something available at the same place as a sign) and off-premises (i.e., advertising something available elsewhere; a billboard advertising a McDonald’s 2 exits down, for instance) is content-neutral and therefore not subject to strict scrutiny. This likely means the City’s sign code is going to be found constitutional. Holding / Majority Opinion (Sotomayor) Like thousands of jurisdictions around the country, the City of Austin, Texas (City), regulates signs that advertise things that are not located on the same premises as the sign, as well as signs that direct people to offsite locations. These are known as off-premises signs, and they include, most notably, billboards. The question presented is whether, under this Court’s precedents interpreting the Free Speech Clause of the First Amendment, the City’s regulation is subject to strict scrutiny. We hold that it is not. American jurisdictions have regulated outdoor advertisements for well over a century. y some accounts, the proliferation of conspicuous patent-medicine advertisements on rocks and barns prompted States to begin regulating outdoor advertising in the late 1860s. As part of this regulatory tradition, federal, state, and local governments have long distinguished between signs (such as billboards) that promote ideas, products, or services located elsewhere and those that promote or identify things located onsite. … On-/off-premises distinctions, like the one at issue here, proliferated following the enactment of the Highway Beautification Act of 1965 (Act), 23 U. S. C. §131. In the Act, Congress directed States receiving federal highway funding to regulate outdoor signs in proximity to federal highways, in part by limiting off-premises signs. Under the Act, approximately two-thirds of States have implemented similar on-/off-premises distinctions. The City represents, and respondents have not disputed, that “tens of thousands of municipalities nationwide” have adopted analogous on-/off-premises distinctions in their sign codes. … Respondents, Reagan National Advertising of Austin, LLC (Reagan), and Lamar Advantage Outdoor Company, L. P. (Lamar), are outdoor-advertising companies that own billboards in Austin. In April and June of 2017, Reagan sought permits from the City to digitize some of its offpremises billboards. The City denied the applications. Reagan filed suit against the City in state court alleging that the code’s prohibition against digitizing off-premises signs, but not on-premises signs, violated the Free Speech Clause of the First Amendment. [The City won at the District Court, lost at the Fifth Circuit on appeal because the Fifth Circuit found the distinction content-based (you have to figure out if the advertisement refers to something on-premises or off-premises, so you have to make that distinction based on its content) and here we are. The reason this is the key issue is that a content-based regulation must meet strict scrutiny, i.e. the government must show that the law is the “least restrictive means” to achieve a “compelling state interest.” The government can almost never do this. A content-neutral regulation, on the other hand, only has to meet intermediate scrutiny, which is “substantially related” to an “important governmental interest.” The government can often do this.] A regulation of speech is facially content based under the First Amendment if it “target[s] speech based on its communicative content”—that is, if it “applies to particular speech because of the topic discussed or the idea or message expressed.” The Court of Appeals interpreted [Reed v. Town of Gilbert, 576 U.S. 155 (2015)] to mean that if “[a] reader must ask: who is the speaker and what is the speaker saying” to apply a regulation, then the regulation is automatically content based. This rule, which holds that a regulation cannot be content neutral if it requires reading the sign at issue, is too extreme an interpretation of this Court’s precedent. Unlike the regulations at issue in Reed, the City’s off-premises distinction requires an examination of speech only in service of drawing neutral, location-based lines. It is agnostic as to content. Thus, absent a content-based purpose or justification, the City’s distinction is content neutral and does not warrant the application of strict scrutiny. The Reed Court confronted a very different regulatory scheme than the one at issue here: a comprehensive sign code that “single[d] out specific subject matter for differential treatment.” The town of Gilbert, Arizona, had adopted a code that applied distinct size, placement, and time restrictions to 23 different categories of signs. The Court focused its analysis on three categories defined by whether the signs displayed ideological, political, or certain temporary directional messages. The code gave the most favorable treatment to “‘Ideological Sign[s],’” defined as those “‘communicating a message or ideas for noncommercial purposes’” with certain exceptions. It offered less favorable treatment to “‘Political Sign[s],’” defined as those “‘designed to influence the outcome of an election.’” Most restricted of all were “‘Temporary Directional Signs Relating to a Qualifying Event,’” with qualifying events defined as gatherings “‘sponsored, arranged, or promoted by a religious, charitable, community service, educational, or other similar nonprofit organization.’” The Reed Court determined that these restrictions were facially content based. Rejecting the contention that the restrictions were content neutral because they did not discriminate on the basis of viewpoint, the Court explained: “[I]t is well established that ‘[t]he First Amendment’s hostility to content-based regulation extends not only to restrictions on particular viewpoints, but also to prohibition of public discussion of an entire topic.’” Applying these principles, the Court reasoned that “a speech regulation targeted at specific subject matter is content based even if it does not discriminate among viewpoints within that subject matter. . . . For example, a law banning the use of sound trucks for political speech—and only political speech—would be a content-based regulation, even if it imposed no limits on the political viewpoints that could be expressed.” By treating ideological messages more favorably than political messages, and both more favorably than temporary directional messages, “[t]he Town’s Sign Code likewise single[d] out specific subject matter for differential treatment, even if it [did] not target viewpoints within that subject matter.” In this case, enforcing the City’s challenged sign code provisions requires reading a billboard to determine whether it directs readers to the property on which it stands or to some other, offsite location. Unlike the sign code at issue in Reed, however, the City’s provisions at issue here do not single out any topic or subject matter for differential treatment. A sign’s substantive message itself is irrelevant to the application of the provisions; there are no content-discriminatory classifications for political messages, ideological messages, or directional messages concerning specific events, including those sponsored by religious and nonprofit organizations. Rather, the City’s provisions distinguish based on location: A given sign is treated differently based solely on whether it is located on the same premises as the thing being discussed or not. The message on the sign matters only to the extent that it informs the sign’s relative location. The on-/off-premises distinction is therefore similar to ordinary time, place, or manner restrictions. Reed does not require the application of strict scrutiny to this kind of location-based regulation. This Court’s First Amendment precedents and doctrines have consistently recognized that restrictions on speech may require some evaluation of the speech and nonetheless remain content neutral. Most relevant here, the First Amendment allows for regulations of solicitation—that is, speech “requesting or seeking to obtain something” or “[a]n attempt or effort to gain business.” To identify whether speech entails solicitation, one must read or hear it first. Even so, the Court has reasoned that restrictions on solicitation are not content based and do not inherently present “the potential for becoming a means of suppressing a particular point of view,” so long as they do not discriminate based on topic, subject matter, or viewpoint. Thus, in 1940, the Court invalidated a statute prohibiting solicitation for religious causes but observed that States were “free to regulate the time and manner of solicitation generally, in the interest of public safety, peace, comfort or convenience.” … Consistent with these precedents, the Court has previously understood distinctions between on-premises and off-premises signs, like the one at issue in this case, to be content neutral. … Underlying these cases and others is a rejection of the view that any examination of speech or expression inherently triggers heightened First Amendment concern. Rather, it is regulations that discriminate based on “the topic discussed or the idea or message expressed” that are content based. The sign code provisions challenged here do not discriminate on those bases. Reagan does not claim Reed expressly or implicitly overturned the precedents discussed above. Its argument relies primarily on one sentence in Reed recognizing that “[s]ome facial distinctions based on a message are obvious, defining regulated speech by particular subject matter, and others are more subtle, defining regulated speech by its function or purpose.” Seizing on this reference, Reagan asserts that the City’s sign code “defines off-premises signs based on their ‘function or purpose.’” It asks the Court to “reaffirm that, where a regulation ‘define[s] regulated speech by its function or purpose,’ it is content-based on its face and thus subject to strict scrutiny.” The argument stretches Reed’s “function or purpose” language too far. The principle the Reed Court articulated is more straightforward. While overt subject-matter discrimination is facially content based (for example, “‘Ideological Sign[s],’” defined as those “‘communicating a message or ideas for noncommercial purposes’”), so, too, are subtler forms of discrimination that achieve identical results based on function or purpose (for example, “‘Political Sign[s],’” defined as those “‘designed to influence the outcome of an election’”). In other words, a regulation of speech cannot escape classification as facially content based simply by swapping an obvious subject-matter distinction for a “function or purpose” proxy that achieves the same result. That does not mean that any classification that considers function or purpose is always content based. Such a reading of “function or purpose” would contravene numerous precedents, including many of those discussed above. Reed did not purport to cast doubt on these cases. Nor did Reed cast doubt on the Nation’s history of regulating off-premises signs. Off-premises billboards of the sort that predominate today were not present in the founding era, but as large outdoor advertisements proliferated in the 1800s, regulation followed. As early as 1932, the Court had already approved a location-based differential for advertising signs. Thereafter, for the last 50-plus years, federal, state, and local jurisdictions have repeatedly relied upon on-/off-premises distinctions to address the distinct safety and esthetic challenges posed by billboards and other methods of outdoor advertising. The unbroken tradition of on-/off-premises distinctions counsels against the adoption of Reagan’s novel rule. Tellingly, even today’s dissent appears reluctant to embrace the read-the-sign rule adopted by the court below. Instead, the dissent attacks a straw man. Contrary to its accusations, we do not “nullif[y]” Reed’s protections, “resuscitat[e]” a decision that we do not cite, or fashion a novel “specificity test” simply by quoting the standard repeatedly enunciated in Reed. Nor do we cast doubt on any of our precedents recognizing examples of topic or subject-matter discrimination as content based. We merely apply those precedents to reach the “commonsense” result that a location-based and content-agnostic on-/off-premises distinction does not, on its face, “singl[e] out specific subject matter for differential treatment.” … This Court’s determination that the City’s ordinance is facially content neutral does not end the First Amendment inquiry. If there is evidence that an impermissible purpose or justification underpins a facially content-neutral restriction, for instance, that restriction may be content based. Moreover, to survive intermediate scrutiny, a restriction on speech or expression must be “‘narrowly tailored to serve a significant governmental interest.’” The parties dispute whether the City can satisfy these requirements. This Court, however, is “a court of final review and not first view,” and it does not “[o]rdinarily . . . decide in the first instance issues not decided below.” “In particular, when we reverse on a threshold question, we typically remand for resolution of any claims the lower courts’ error prevented them from addressing.” Because the Court of Appeals did not address these issues, the Court leaves them for remand and expresses no view on the matters. For these reasons, the judgment of the Court of Appeals for the Fifth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. Lineup: Sotomayor, joined by Roberts, Breyer, Kagan, and Kavanaugh. Concurrence by Breyer. Concurrence in the judgment and dissent in part by Alito. Dissent by Thomas, joined by Gorsuch and Barrett. Concurrence (Breyer) Reed v. Town of Gilbert, 576 U. S. 155 (2015), is binding precedent here. Given that precedent, I join the majority’s opinion. I write separately because I continue to believe that the Court’s reasoning in Reed was wrong. The Court there struck down a city’s sign ordinance under the First Amendment. It wrote that the First Amendment requires strict scrutiny whenever a regulation “target[s] speech based on its communicative content.” It therefore concluded that “[c]ontent-based laws . . . are presumptively unconstitutional and may be justified only if the government proves that they are narrowly tailored to serve compelling state interests.” But the First Amendment is not the Tax Code. Its purposes are often better served when judge-made categories (like “content discrimination”) are treated, not as brightline rules, but instead as rules of thumb. And, where strict scrutiny’s harsh presumption of unconstitutionality is at issue, it is particularly important to avoid jumping to such presumptive conclusions without first considering “whether the regulation at issue works harm to First Amendment interests that is disproportionate in light of the relevant regulatory objectives.” Here, I would conclude that the City of Austin’s (City’s) regulation of off-premises signs works no such disproportionate harm. I therefore agree with the majority’s conclusion that strict scrutiny and its attendant presumption of unconstitutionality are unwarranted. The majority reaches this conclusion by applying Reed’s formal framework, as stare decisis requires. I would add that Reed’s strict formalism can sometimes disserve the very First Amendment interests it was designed to protect. The First Amendment helps to safeguard what Justice Holmes described as a marketplace of ideas. A democratic people must be able to freely “generate, debate, and discuss both general and specific ideas, hopes, and experiences.” … Courts help to protect these democratic values in part by strictly scrutinizing certain categories of laws that threaten to “‘drive certain ideas or viewpoints from the marketplace.’” … But not all laws that distinguish between speech based on its content fall into a category of this kind. That is in part because many ordinary regulatory programs may well turn on the content of speech without posing any “realistic possibility that official suppression of ideas is afoot.” Those regulations, rather than hindering the ability of the people to transmit their thoughts to their elected representatives, may constitute the very product of that transmission. … The U. S. Code (as well as its state and local equivalents) is filled with regulatory laws that turn, often necessarily, on the content of speech. Consider laws regulating census reporting requirements, e.g., 13 U. S. C. §224; securities-related disclosures, e.g., 15 U. S. C. §78l; copyright infringement, e.g., 17 U. S. C. §102; labeling of prescription drugs, e.g., 21 U. S. C. §353(b)(4)(A), or consumer electronics, e.g., 42 U. S. C. §6294; highway signs, e.g., 23 U. S. C. §131(c); tax disclosures, e.g., 26 U. S. C. §6039F; confidential medical records, e.g., 38 U. S. C. §7332; robocalls, e.g., 47 U. S. C. §227; workplace safety warnings, e.g., 29 CFR §1910.145 (2021); panhandling, e.g., Ala. Code §13A–11–9(a) (2022); solicitation on behalf of charities, e.g., N. Y. Exec. Law Ann. §174–b (West 2019); signs at petting zoos, e.g., N. Y. Gen. Bus. Law Ann. §399–ff(3) (West 2015); and many more. If Reed is taken as setting forth a formal rule that courts must strictly scrutinize regulations simply because they refer to particular content, we have good reason to fear the consequences of that decision. One possibility is that courts will strike down “‘entirely reasonable’” regulations that reflect the will of the people. If so, the Court’s content-based line-drawing will “substitut[e] judicial for democratic decision-making” and threaten the ability of the people to translate their ideas into policy. A second possibility is that courts instead will (perhaps unconsciously) dilute the stringent strict scrutiny standard in an effort to avoid striking down reasonable regulations. Doing so would “weaken the First Amendment’s protection in instances where ‘strict scrutiny’ should apply in full force.” A third possibility is that courts will develop a matrix of formal subsidiary rules and exceptions that seek to distinguish between reasonable and unreasonable content-based regulations. Such a patchwork, however, may prove overly complex, unwieldy, or unworkable. And it may make it more difficult for ordinary Americans to understand the importance of First Amendment values and to live their lives in accord with those values. For these reasons, as I have said before, I would reject Reed’s approach, which too rigidly ties content discrimination to strict scrutiny (and, consequently, to “almost certain legal condemnation”). Instead, I would treat content discrimination as a rule of thumb to be applied with what JUSTICE KAGAN has called “a dose of common sense.” Where content-based regulations are at issue, I would ask a more basic First Amendment question: Does “the regulation at issue wor[k] harm to First Amendment interests that is disproportionate in light of the relevant regulatory objectives”? I believe we should answer that question by examining “the seriousness of the harm to speech, the importance of the countervailing objectives, the extent to which the law will achieve those objectives, and whether there are other, less restrictive ways of doing so.” … Billboards and other roadside signs can generally be categorized as a form of outdoor advertising. Regulation of outdoor advertising in order to protect the public’s interest in “avoiding visual clutter,” or minimizing traffic risks, is unlikely to interfere significantly with the “marketplace of ideas.” In this case, for example, there is no evidence that the City regulated off-premises signs in order to censor a particular viewpoint or topic, or that its regulations have had that effect in practice. There is consequently little reason to apply a presumption of unconstitutionality to this kind of regulation. Without such a presumption, I would weigh the First Amendment harms that a regulation imposes against the regulatory objectives that it serves. The City’s regulation here appears to work at most a limited, niche-like harm to First Amendment interests. Respondents own a number of grandfathered off-premises signs. They can use those signs to communicate whatever messages they choose. They complain only that they cannot digitize the signs, which would allow them to display several messages in rapid succession. Perhaps digitization would enable them to make more effective use of their billboard space. But their inability to maximize the use of their space in this way is unlikely to meaningfully interfere with their participation in the “marketplace of ideas.” At the same time, the City has asserted a legitimate interest in maintaining the regulation. As I have said, the public has an interest in ensuring traffic safety and preserving an esthetically pleasing environment, supra this page, and the City here has reasonably explained how its regulation of off-premises signs in general, and digitization in particular, serves those interests. Amici tell us that billboards, especially digital ones, can distract drivers and cause accidents. They add that on-premises signs are less likely to cause accidents. The City further says that billboards cause more visual clutter than on-premises signs because the latter are “typically ‘small in size’ and integrated into the premises.” I would leave for the courts below to weigh these harms and interests, and any alternatives, in the first instance, without a strong presumption of unconstitutionality. Concurrence in the Judgment and Dissent in Part (Alito) I agree with the majority that we must reverse the decision of the Court of Appeals holding that the provisions of the Austin City Code regulating on- and off-premises signs are facially unconstitutional. The Court of Appeals reasoned that those provisions impose content-based restrictions and that they cannot satisfy strict scrutiny, but the Court of Appeals did not apply the tests that must be met before a law is held to be facially unconstitutional. … Many (and possibly the great majority) of the situations in which the relevant provisions may apply involve commercial speech, and under our precedents, regulations of commercial speech are analyzed differently. It is also questionable whether those code provisions are unconstitutional as applied to most of respondents’ billboards. It appears that most if not all of those billboards are located off-premises in both the usual sense of that term, and in the sense in which the term is used in the Austin code. The record contains photos of some of these billboards, and all but one appears to be located on otherwise vacant land. Thus, they are clearly off-premises signs, and because they were erected before the enactment of the code provisions at issue, the only relevant restriction they face is that they cannot be digitized. The distinction between a digitized and non-digitized sign is not based on content, topic, or subject matter. Even if the message on a billboard were written in a secret code, an observer would have no trouble determining whether it had been digitized. Because the Court of Appeals erred in holding that the code provisions are facially unconstitutional, I agree that we should reverse that decision. On remand, the lower courts should determine whether those provisions are unconstitutional as applied to each of the billboards at issue. Today’s decision, however, goes further and holds flatly that “[t]he sign code provisions challenged here do not discriminate” on the basis of “‘the topic discussed or the idea or message expressed,’” and that categorical statement is incorrect. The provisions defining on- and off-premises signs clearly discriminate on those grounds, and at least as applied in some situations, strict scrutiny should be required. As the Court notes, under the provisions in effect when petitioner’s applications were denied, a sign was considered to be off-premises if it “advertis[ed],” among other things, a “person, activity, . . . or servic[e] not located on the site where the sign is installed” or if it “direct[ed] persons to any location not on that site.” Consider what this definition would mean as applied to signs posted in the front window of a commercial establishment, say, a little coffee shop. If the owner put up a sign advertising a new coffee drink, the sign would be classified as on-premises, but suppose the owner instead mounted a sign in the same location saying: “Contribute to X’s legal defense fund” or “Free COVID tests available at Y pharmacy” or “Attend City Council meeting to speak up about Z.” All those signs would appear to fall within the definition of an off-premises sign and would thus be disallowed. Providing disparate treatment for the sign about a new drink and the signs about social and political matters constitutes discrimination on the basis of topic or subject matter. The code provisions adopted in 2017 are worded differently, but the new wording may not rule out similar results. For these reasons, I would simply hold that the provisions at issue are not facially unconstitutional, and I would refrain from making any broader pronouncements. Dissent (Thomas, joined by Gorsuch and Barrett) In Reed v. Town of Gilbert, 576 U. S. 155 (2015), we held that a speech regulation is content based—and thus presumptively invalid—if it “draws distinctions based on the message a speaker conveys.” Here, the city of Austin imposes special restrictions on “off-premise[s] sign[s],” defined as signs that “advertis[e] a business, person, activity, goods, products, or services not located on the site where the sign is installed, or that direc[t] persons to any location not on that site.” Under Reed, Austin’s off-premises restriction is content based. It discriminates against certain signs based on the message they convey—e.g., whether they promote an on- or off-site event, activity, or service. The Court nevertheless holds that the off-premises restriction is content neutral because it proscribes a sufficiently broad category of communicative content and, therefore, does not target a specific “topic or subject matter.” This misinterprets Reed’s clear rule for content-based restrictions and replaces it with an incoherent and malleable standard. … In Reed v. Town of Gilbert, we held that courts should identify content-based restrictions by applying a “common-sense” test: A speech regulation is content based if it “target[s] speech based on its communicative content.” Put another way, a law is content based “‘on its face’ [if it] draws distinctions based on the message a speaker conveys.” Ibid. While we noted that “[s]ome facial distinctions based on a message are obvious,” we emphasized that others could be “more subtle, defining regulated speech by its function or purpose.” Ibid. In all events, whether a law is characterized as targeting a “topic,” “idea,” “subject matter,” or “communicative content,” the law is content based if it draws distinctions based in any way “on the message a speaker conveys.” Applying this standard, we held that the town of Gilbert’s sign code was “a paradigmatic example of contentbased discrimination” because it classified “various categories of signs based on the type of information they convey[ed], [and] then subject[ed] each category to different restrictions.” … Under Reed’s approach for identifying content-based regulations, Austin’s off-premises sign restriction is content based. As relevant to this suit, Austin’s sign code imposes stringent restrictions on a category of “off-premise[s] sign[s].” The code defines “off-premise[s] sign[s]” as those “advertising a business, person, activity, goods, products, or services not located on the site where the sign is installed,” or as signs “direct[ing] persons to any location not on that site.” This broad definition sweeps in a wide swath of signs, from 14- by 48-foot billboards to 24- by 18-inch yard signs. The sign code prohibits new off-premises signs and makes it difficult (or impossible) to change existing off-premises signs, including by digitizing them. Like the town of Gilbert in Reed, Austin has identified a “categor[y] of signs based on the type of information they convey, [and] then subject[ed that] category to different restrictions.” A sign that conveys a message about off-premises activities is restricted, while one that conveys a message about on-premises activities is not. And, per Reed, it does not matter that Austin’s code “defin[es] regulated speech by its function or purpose”—i.e., advertising or directing passersby elsewhere. Again, all that matters is that the regulation “draws distinctions based on” a sign’s “communicative content,” which the off-premises restriction plainly does. This conclusion is not undermined because the off-premises sign restriction depends in part on a content-neutral element: the location of the sign. Much like in Reed, that an Austin official applying the sign code must know where the sign is does not negate the fact that he also must know what the sign says. Take, for instance, a sign outside a Catholic bookstore. If the sign says, “Visit the Holy Land,” it is likely an off-premises sign because it conveys a message directing people elsewhere (unless the name of the bookstore is “Holy Land Books”). But if the sign instead says, “Buy More Books,” it is likely a permissible on-premises sign (unless the sign also contains the address of another bookstore across town). Finally, suppose the sign says, “Go to Confession.” After examining the sign’s message, an official would need to inquire whether a priest ever hears confessions at that location. If one does, the sign could convey a permissible “on-premises” message. If not, the sign conveys an impermissible off-premises message. Because enforcing the sign code in any of these instances “requires [Austin] officials to determine whether a sign” conveys a particular message, the sign code is content based under Reed. In sum, the off-premises rule is content based and thus invalid unless Austin can satisfy strict scrutiny. Because Austin has offered nothing to make that showing, the Court of Appeals did not err in holding that the off-premises rule violates the First Amendment. https://www.supremecourt.gov/opinions/21pdf/20-1029_i42k.pdf
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Apr 21, 2022 17:09
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ulmont posted:One of five from April 21. More to come later Someone help me untangle Thomas' opining in bizarre  territory herehttps://twitter.com/chrisgeidner/status/1517147559084535809 Is this just an originalist making sure that his doctrine of originalism remains untouched by the majority opinion using the 5th instead of the 14th from that specific citation?
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Apr 21, 2022 17:24
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I'm not sure it's worth gazing into the abyss that is Clarence Thomas's mind. Maybe it's something like "well the 5th was written by slavers who clearly didn't give a poo poo about race protections while a post-CW amendment would" but that'd mean saying something negative about the Founders, so...
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Apr 21, 2022 18:44
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Potato Salad posted:Someone help me untangle Thomas' opining in bizarre Clarence Thomas has written a dissent or concurrence on every single decision that he can shoehorn something about the 14th in or one that explicitly touches the 14th. He is anti-due process incorporation and pro privileges and immunity incorporation. He will never fully sign onto a majority that has anything to do with the 14th unless he's writing it. One potential outcome of the Mississippi case is that thomas gets the majority and due process incorporation and privacy rights via substantive due process disappear. This covers a lot of women's health and gay rights cases.
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Apr 21, 2022 18:50
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Potato Salad posted:Someone help me untangle Thomas' opining in bizarre Even two of the “good ones” voted for this horseshit.
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Apr 21, 2022 18:52
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Opinion! Two of five from April 21. United States v. Vaello Madero TLDR: Puerto Rican residents aren’t eligible for Supplemental Security Income benefits. Nor do they pay most federal taxes. Holding / Majority Opinion (Kavanaugh) The United States includes five Territories: American Samoa, Guam, the Northern Mariana Islands, the U. S. Virgin Islands, and Puerto Rico. This case involves Puerto Rico, which became a U. S. Territory in 1898 in the wake of the Spanish-American War. For various historical and policy reasons, including local autonomy, Congress has not required residents of Puerto Rico to pay most federal income, gift, estate, and excise taxes. Congress has likewise not extended certain federal benefits programs to residents of Puerto Rico. The question presented is whether the equal-protection component of the Fifth Amendment’s Due Process Clause requires Congress to make Supplemental Security Income benefits available to residents of Puerto Rico to the same extent that Congress makes those benefits available to residents of the States. In light of the text of the Constitution, longstanding historical practice, and this Court’s precedents, the answer is no. The Territory Clause of the Constitution states that Congress may “make all needful Rules and Regulations respecting the Territory . . . belonging to the United States.” The text of the Clause affords Congress broad authority to legislate with respect to the U. S. Territories. Exercising that authority, Congress sometimes legislates differently with respect to the Territories, including Puerto Rico, than it does with respect to the States. That longstanding congressional practice reflects both national and local considerations. In tackling the many facets of territorial governance, Congress must make numerous policy judgments that account not only for the needs of the United States as a whole but also for (among other things) the unique histories, economic conditions, social circumstances, independent policy views, and relative autonomy of the individual Territories. Of relevance here, Congress must decide how to structure federal taxes and benefits for residents of the Territories. In doing so, Congress has long maintained federal tax and benefits programs for residents of Puerto Rico and the other Territories that differ in some respects from the federal tax and benefits programs for residents of the 50 States. On the tax side, for example, residents of Puerto Rico are typically exempt from most federal income, gift, estate, and excise taxes. At the same time, residents of Puerto Rico generally pay Social Security, Medicare, and unemployment taxes. On the benefits side, residents of Puerto Rico are eligible for Social Security and Medicare. Residents of Puerto Rico are also eligible for federal unemployment benefits. But just as not every federal tax extends to residents of Puerto Rico, so too not every federal benefits program extends to residents of Puerto Rico. One example is the Supplemental Security Income program, which Congress passed and President Nixon signed into law in 1972. The Supplemental Security Income program provides benefits for, among others, those who are age 65 or older and cannot financially support themselves. To be eligible for Supplemental Security Income, an individual must be a “resident of the United States,” which the statute defines as the 50 States and the District of Columbia. A later statute included residents of the Northern Mariana Islands in the program. But residents of Puerto Rico are not eligible for Supplemental Security Income. Instead, the Federal Government provides supplemental income assistance to covered residents of Puerto Rico through a different benefits program— one that is funded in part by the Federal Government and in part by Puerto Rico. The dispute in this case concerns a claim for Supplemental Security Income benefits by a resident of Puerto Rico named Jose Luis Vaello Madero. In 2013, Vaello Madero moved from New York to Puerto Rico. While he lived in New York, Vaello Madero received Supplemental Security Income benefits. After moving to Puerto Rico, Vaello Madero no longer was eligible for Supplemental Security Income benefits. Yet for several years, the U. S. Government remained unaware of Vaello Madero’s new residence and continued to pay him benefits. The overpayment totaled more than $28,000. [The government sues, Vaello Madero defends, he wins at the District Court and Court of Appeals levels, and here we go.] In Califano v. Torres, the Court addressed whether Congress’s decision not to extend Supplemental Security Income to Puerto Rico violated the constitutional right to interstate travel. Applying the deferential rational-basis test, the Court upheld Congress’s decision. The Court explained that Congress had exempted residents of Puerto Rico from federal taxes. And the Court concluded that Congress could likewise treat residents of Puerto Rico differently from residents of the States in the Supplemental Security Income benefits program. A few years later, in Harris v. Rosario, the Court again ruled that Congress’s differential treatment of Puerto Rico in a federal benefits program did not violate the Constitution—this time, the equal-protection component of the Fifth Amendment’s Due Process Clause. The Court stated that the Territory Clause permits Congress to “treat Puerto Rico differently from States so long as there is a rational basis for its actions.” Citing the prior decision in Torres, the Court noted that Congress’s tax laws treated residents of Puerto Rico differently from residents of the States. And the Court concluded that Congress could do the same for that benefits program. Those two precedents dictate the result here. The deferential rational-basis test applies. And Puerto Rico’s tax status—in particular, the fact that residents of Puerto Rico are typically exempt from most federal income, gift, estate, and excise taxes—supplies a rational basis for likewise distinguishing residents of Puerto Rico from residents of the States for purposes of the Supplemental Security Income benefits program. In devising tax and benefits programs, it is reasonable for Congress to take account of the general balance of benefits to and burdens on the residents of Puerto Rico. In doing so, Congress need not conduct a dollar-to-dollar comparison of how its tax and benefits programs apply in the States as compared to the Territories, either at the individual or collective level. Congress need only have a rational basis for its tax and benefits programs. Congress has satisfied that requirement here. Moreover, Vaello Madero’s position would usher in potentially far-reaching consequences. For one, Congress would presumably need to extend not just Supplemental Security Income but also many other federal benefits programs to residents of the Territories in the same way that those programs cover residents of the States. And if this Court were to require identical treatment on the benefits side, residents of the States could presumably insist that federal taxes be imposed on residents of Puerto Rico and other Territories in the same way that those taxes are imposed on residents of the States. Doing that, however, would inflict significant new financial burdens on residents of Puerto Rico, with serious implications for the Puerto Rican people and the Puerto Rican economy. The Constitution does not require that extreme outcome. The Constitution affords Congress substantial discretion over how to structure federal tax and benefits programs for residents of the Territories. Exercising that discretion, Congress may extend Supplemental Security Income benefits to residents of Puerto Rico. Indeed, the Solicitor General has informed the Court that the President supports such legislation as a matter of policy. But the limited question before this Court is whether, under the Constitution, Congress must extend Supplemental Security Income to residents of Puerto Rico to the same extent as to residents of the States. The answer is no. We therefore reverse the judgment of the U. S. Court of Appeals for the First Circuit. It is so ordered. Lineup: Kavanaugh, joined by Roberts, Thomas, Breyer, Alito, Kagan, Gorsuch, and Barrett. Concurrence by Thomas. Concurrence by Gorsuch. Dissent by Sotomayor. Concurrence (Thomas) I join the opinion of the Court. I write separately to address the premise that the Due Process Clause of the Fifth Amendment contains an equal protection component whose substance is “precisely the same” as the Equal Protection Clause of the Fourteenth Amendment. Although I have joined the Court in applying this doctrine, I now doubt whether it comports with the original meaning of the Constitution. Firmer ground for prohibiting the Federal Government from discriminating on the basis of race, at least with respect to civil rights, may well be found in the Fourteenth Amendment’s Citizenship Clause. Until the middle of the 20th century, this Court consistently recognized that the Fifth Amendment “contains no equal protection clause and it provides no guaranty against discriminatory legislation by Congress.” However, the Court did maintain that the Fifth Amendment’s Due Process Clause prohibited “such discriminatory legislation by Congress as amounts to a denial of due process,” i.e., legislation that would fail rational-basis review. In Bolling v. Sharpe, 347 U. S. 497 (1954), the Court began in earnest to fold an “equal protection” guarantee into the concept of “due process.” Decided the same day as Brown v. Board of Education, 347 U. S. 483 (1954), Bolling confronted the constitutionality of government-imposed segregation in the District of Columbia’s public schools. Because any such segregation was attributable to Congress, see U. S. Const., Art. I, §8, cl. 17, rather than state action, the Equal Protection Clause did not apply. Bolling instead read an equal protection principle into the Fifth Amendment’s requirement that “[n]o person shall . . . be deprived of life, liberty, or property, without due process of law.” Bolling’s locating of an equal protection guarantee in the Fifth Amendment’s Due Process Clause raises substantial questions. First, Bolling’s interpretation seemingly relies upon the Lochner-era theory that “unreasonable discrimination” is “a denial of due process of law.” By invoking “due process” to hold an allegedly “unreasonable” or “arbitrary” legislative classification unconstitutional, Bolling made clear that it was applying this Court’s “substantive due process” doctrine. But “[t]he notion that a constitutional provision that guarantees only ‘process’ before a person is deprived of life, liberty, or property could define the substance of those rights strains credulity for even the most casual user of words.” Rather, “‘considerable historical evidence supports the position that “due process of law” was a separation-of-powers concept designed as a safeguard against unlicensed executive action, forbidding only deprivations not authorized by legislation or common law.’” And, to the extent that the Due Process Clause restrains the authority of Congress, it may, at most, prohibit Congress from authorizing the deprivation of a person’s life, liberty, or property without providing him the “customary procedures to which freemen were entitled by the old law of England.” Either way, the Fifth Amendment’s text and history provide little support for modern substantive due process doctrine. To be sure, some have argued that “antebellum due process theory commonly included an equality principle” that circumscribed legislative authority. But there is no historical consensus that this kind of substantive due process took hold in antebellum America. And, in any event, “the pre-constitutional and Founding-era evidence regarding the meaning of ‘due process of law’ strongly suggests the phrase most likely would have been viewed in 1791 . . . as guaranteeing either that duly enacted law would be followed or that certain requisite procedures would be observed.” It is not clear why post-1791 developments should displace more probative preconstitutional and founding-era evidence. Second, Bolling reasoned that the “liberty” protected by the Due Process Clause covers “the full range of conduct which the individual is free to pursue,” and therefore guaranteed freedom from segregated schooling. That understanding of “liberty” likely sweeps too broadly. Given the relevant history, “it is hard to see how the ‘liberty’ protected by the [Due Process Clause] could be interpreted to include anything broader than freedom from physical restraint.” And even if “liberty” encompasses more than that, “[i]n the American legal tradition, liberty has long been understood as individual freedom from governmental action, not as a right to a particular government entitlement.” Consequently, if “liberty” in the Due Process Clause does not include any rights to public benefits, it is unclear how that provision can constrain the regulation of access to those benefits. Third, although the Bolling Court claimed that its decision “d[id] not imply that [due process and equal protection] are always interchangeable phrases,” its logic led this Court to later erase any distinction between them. We now maintain that the “equal protection obligations imposed by the Fifth and the Fourteenth Amendments [are] indistinguishable.” But if “due process of law” fully subsumed the guarantee of equal protection, it is unclear why §1 of the Fourteenth Amendment would redundantly state both requirements in consecutive Clauses. Fourth, Bolling asserted that because the Constitution prohibits States from racially segregating public schools, “it would be unthinkable that the same Constitution would impose a lesser duty on the Federal Government.” For one, such moral judgments lie beyond the commission of the federal courts. For another, the assertion is debatable at best. “The Constitution contains many limitations that apply only to the states, or only to the federal government, and this Court is not free to disregard those aspects of the constitutional design.” Likewise, “the enactors of the Fourteenth Amendment might have reasonably believed that [an equal protection] provision was not needed against the federal government” because it “had shown itself to be a much better protector of the rights of minorities than had the states.” In sum, the text and history of the Fifth Amendment’s Due Process Clause provide limited support for reading into that provision an equal protection guarantee. Even if the Due Process Clause has no equal protection component, the Constitution may still prohibit the Federal Government from discriminating on the basis of race, at least with respect to civil rights. While my conclusions remain tentative, I think that the textual source of that obligation may reside in the Fourteenth Amendment’s Citizenship Clause. That Clause provides: “All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” As I sketch out briefly below, considerable historical evidence suggests that the Citizenship Clause “was adopted against a longstanding political and legal tradition that closely associated the status of ‘citizenship’ with the entitlement to legal equality.” Thus, the Citizenship Clause could provide a firmer foundation for Bolling’s result than the Fifth Amendment’s Due Process Clause. In the years before the Fourteenth Amendment’s adoption, jurists and legislators often connected citizenship with equality. Namely, the absence or presence of one entailed the absence or presence of the other. By the late 1850s, the connection was well established. … Senator Stephen Douglas, defending Dred Scott a few months later in Springfield, Illinois…asked his audience, “What is the object of making [Dred Scott] a citizen?” and answered, “Of course to give him the rights, privileges and immunities of a citizen, it being the great fundamental law in our Government, that under the law, citizens are equal in their rights and privileges.” Thus, Douglas recognized that the bestowal of citizenship ineluctably entailed equal civil rights. Abolitionists agreed, but, unlike Taney and Douglas, reasoned that all persons—black or white—born in the United States were citizens and therefore entitled to equal civil rights. … Congress enacted the Civil Rights Act of 1866 to both repudiate Dred Scott and eradicate the Black Codes. The 1866 Act contained a citizenship clause similar to the Fourteenth Amendment’s: “[A]ll persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States.” The provision immediately succeeding that citizenship guarantee clarified that “such citizens, of every race and color” were entitled to “the same right, in every State and Territory in the United States, to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and to full and equal benefit of all laws and proceedings for the security of person and property, as is enjoyed by white citizens, and shall be subject to like punishment, pains, and penalties, and to none other.” Fleshing out the implications of the citizenship declaration, this clause suggests that the right to be free of racial discrimination with respect to the enjoyment of certain rights is a constituent part of citizenship. … While the historical evidence above is by no means conclusive, it offers substantial support for the proposition that, by conferring citizenship, the Citizenship Clause guarantees citizens equal treatment by the Federal Government with respect to civil rights…The Citizenship Clause’s conferral of the “dignity and glory of American citizenship” may well prohibit the Federal Government from denying citizens equality with respect to civil rights. Rather than continue to invoke the Fifth Amendment’s Due Process Clause to justify Bolling, in an appropriate case, we should more carefully consider whether this interpretation of the Citizenship Clause would yield a similar, and more supportable, result. Concurrence (Gorsuch) A century ago in the Insular Cases, this Court held that the federal government could rule Puerto Rico and other Territories largely without regard to the Constitution. It is past time to acknowledge the gravity of this error and admit what we know to be true: The Insular Cases have no foundation in the Constitution and rest instead on racial stereotypes. They deserve no place in our law. The Insular Cases were the product of what John Hay called a “‘splendid little war.’” Ostensibly waged to liberate Cuba and avenge the sinking of the Maine, the Spanish-American War proved a boon for the country’s burgeoning colonial ambitions. The aging Spanish empire was in no position to defend its island possessions, and several fell to American forces in quick succession. Under the ensuing peace treaty signed in 1898, the United States took possession of Puerto Rico, Guam, and the Philippines But these acquisitions, hard on the heels of the annexation of Hawaii, soon ignited a fierce debate. Some argued that our republican traditions prevented the United States from governing distant possessions as subservient colonies without regard to the Constitution. Others sought to devise new theories by which Congress could permanently rule the country’s new acquisitions as a European power might, unrestrained by domestic law. To answer the question whether the [import-export tax for Puerto Rico] complied with the Constitution, the Court resolved that it first had to decide whether the Constitution applied at all in Puerto Rico. Ultimately, a fractured set of opinions emerged. Employing arguments similar to those advanced by Professors Langdell and Thayer, Justice Brown saw things in the starkest terms. Applying the Constitution made sense in “contiguous territor[ies] inhabited only by people of the same race, or by scattered bodies of native Indians.” But it would not do for islands “inhabited by alien races, differing from us in religion, customs, laws, methods of taxation, and modes of thought.” There, Justice Brown contended, “the administration of government and justice, according to Anglo-Saxon principles, may for a time be impossible.” On his view, the Constitution should reach Puerto Rico only if and when Congress so directed. … Eventually [in later cases], a majority embraced Justice White’s “incorporation” theory, including its suggestion that certain constitutional protections are “fundamental” and therefore apply even in far-flung “unincorporated” possessions. At the same time, it became clear that very few constitutional limits on the power of the federal government could be relied upon in the newly acquired Territories absent a clear congressional statement. Even the right to trial by jury, the Court concluded, was not fundamental enough to apply in unincorporated Territories like Puerto Rico. It did not matter to the Court that, by the time it reached the question, Congress had already granted Puerto Ricans U. S. citizenship. In the Court’s estimation, the “locality [was] determinative of the application of the Constitution, . . . not the status of the people who live in it.” And, on the Court’s account, Puerto Rico’s “localities” included “compact and ancient communities” that had not yet developed the “impartial attitude” or “conscious duty of participation” required of citizens by the “Anglo-Saxon” jury trial. The flaws in the Insular Cases are as fundamental as they are shameful. Nothing in the Constitution speaks of “incorporated” and “unincorporated” Territories. Nothing in it extends to the latter only certain supposedly “fundamental” constitutional guarantees. Nothing in it authorizes judges to engage in the sordid business of segregating Territories and the people who live in them on the basis of race, ethnicity, or religion. … The Insular Cases’ departure from the Constitution’s original meaning has never been much of a secret. Even commentators at the time understood that the notion of territorial incorporation was a thoroughly modern invention. The Insular Cases deviated, too, from this Court’s prior and longstanding understanding of the Constitution. In 1898, the very same year as the Spanish-American War, a lopsided majority of this Court judged it “beyond question” that the Constitution’s jury-trial guarantees reached “the territories of the United States.” Nearly 80 years before that, the Court held that the Constitution’s Tax Uniformity Clause constrained legislation governing the District of Columbia. In between, this Court reached similar conclusions in case after case. With the passage of time, this Court has come to admit discomfort with the Insular Cases. But instead of confronting their errors directly, this Court has devised a workaround. Employing the specious logic of the Insular Cases, the Court has proceeded to declare “fundamental”—and thus applicable even to “unincorporated” Territories—more and more of the Constitution’s guarantees. That solution is no solution. It leaves the Insular Cases on the books. Lower courts continue to feel constrained to apply their terms. And the fictions of the Insular Cases on which this workaround depends are just that. What provision of the Constitution could any judge rightly declare less than fundamental? On what basis could any judge profess the right to draw distinctions between incorporated and unincorporated Territories, terms nowhere mentioned in the Constitution and which in the past have turned on bigotry? There are no good answers to these bad questions. This workaround, too, has proven as ineffectual as it is inappropriate. Perhaps this Court can continue to drain the Insular Cases of some of their poison by declaring provision after provision of the Constitution “fundamental” and thus operative in “unincorporated” Territories. But even one hundred years on, that pitiable job remains unfinished. Still today under this Court’s cases we are asked to believe that the right to a trial by jury remains insufficiently “fundamental” to apply to some 3 million U. S. citizens in “unincorporated” Puerto Rico. At the same time, the full panoply of constitutional rights apparently applies on the Palmyra Atoll, an uninhabited patch of land in the Pacific Ocean, because it represents our Nation’s only remaining “incorporated” Territory. It is an implausible and embarrassing state of affairs. The case before us only defers a long overdue reckoning. Rather than ask the Court to overrule the Insular Cases, both sides in this litigation work from the shared premise that the equal protection guarantee under which Mr. Vaello Madero brings his claim is a “fundamental” feature of the Constitution and thus applies in “unincorporated” Territories like Puerto Rico. Proceeding on the parties’ shared premise, the Court applies the Constitution and holds that the conduct challenged here does not offend its terms. All that may obviate the necessity of overruling the Insular Cases today. But it should not obscure what we know to be true about their errors, and in an appropriate case I hope the Court will soon recognize that the Constitution’s application should never turn on a governmental concession or the misguided framework of the Insular Cases. Asked why he dissented in those cases year after year, Justice Harlan replied that “‘no question can be settled until settled right.’” We should settle this question right. To be sure, settling this question right would raise difficult new ones. Cases would no longer turn on the fictions of the Insular Cases but on the terms of the Constitution itself. Disputes are sure to arise about exactly which of its individual provisions applies in the Territories and how. Some of these new questions may prove hard to resolve. But at least they would be the right questions. And at least courts would employ legally justified tools to answer them, including not just the Constitution’s text and its original understanding but the Nation’s historical practices (or at least those uninfected by the Insular Cases). Nor, in any event, can the difficulty of the task supply an excuse for neglecting it. Because no party asks us to overrule the Insular Cases to resolve today’s dispute, I join the Court’s opinion. But the time has come to recognize that the Insular Cases rest on a rotten foundation. And I hope the day comes soon when the Court squarely overrules them. We should follow Justice Harlan and settle this question right. Our fellow Americans in Puerto Rico deserve no less. Dissent (Sotomayor) The Supplemental Security Income (SSI) program provides a guaranteed minimum income to certain vulnerable citizens who lack the means to support themselves. If they meet uniform federal eligibility criteria, recipients are entitled to SSI regardless of their contributions, or their State’s contributions, to the United States Treasury, which funds the program. Despite these broad eligibility criteria, today the Court holds that Congress’ decision to exclude citizen residents of Puerto Rico from this important safety-net program is consistent with the Fifth Amendment’s equal protection guarantee. I disagree. In my view, there is no rational basis for Congress to treat needy citizens living anywhere in the United States so differently from others. To hold otherwise, as the Court does, is irrational and antithetical to the very nature of the SSI program and the equal protection of citizens guaranteed by the Constitution. I respectfully dissent. … To provide a uniform, guaranteed minimum income for the neediest adults, Congress established the SSI program in 1972. In creating the SSI program, Congress “displaced the States.” Rather than dispensing money through block grants to the States, SSI provides monthly cash benefits directly to qualifying low-income individuals who are over 65 years old, blind, or disabled. The Federal Government sets uniform qualifications for eligibility and fully funds the program through mandatory appropriations from the general fund of the United States Treasury. Unlike AABD benefits, SSI benefits do not vary based on the specific State or Territory that a beneficiary is located in, as long as the beneficiary is otherwise eligible. In sum, SSI created a fully nationalized assistance program with federal administration, federal determination of eligibility, and financed entirely from federal funds. When Congress created SSI, it made the program available only to “resident[s] of the United States,” and it defined United States as including “the 50 States and the District of Columbia.” Congress later extended the SSI program to residents of the Commonwealth of the Northern Mariana Islands. Although Puerto Rico is not a State, it has been part of the United States for well over a century, and people born in Puerto Rico are U. S. citizens. In other contexts, Congress has made clear that references to the “United States” include Puerto Rico. In this context, however, Congress did not extend the SSI program to Puerto Rico and other Territories. Instead, Congress left in place the [prior Aid to the Aged, Blind, and Disabled (AABD)] program [where Congress gives money to Puerto Rico and it sets its own rules and hands out the money]. Congress’ decision not to include Puerto Rico in the SSI program has a significant impact on U. S. citizens in Puerto Rico. In 2021, 34,224 residents of Puerto Rico were enrolled in the AABD program; by contrast, in 2011, the Government Accountability Office estimates that over 300,000 Puerto Rico residents would have qualified for SSI. The 34,224 Puerto Rico residents enrolled in AABD in 2021 received an average of $82 per month, compared to the $574 per month that the average SSI recipient received in Fiscal Year 2020. In other words, significantly fewer Puerto Rico residents are eligible for AABD than would be eligible for SSI, and the benefits they receive under AABD are hardly comparable to those they would likely receive under SSI. [Lawsuit ensues] In general, the Equal Protection Clause guarantees that the Government will treat similarly situated individuals in a similar manner. Equal protection does not foreclose the Government’s ability to classify persons or draw lines when creating and applying laws, but it does guarantee that the Government cannot base those classifications upon impermissible criteria or use them arbitrarily to burden a particular group of individuals. Where a law treats differently two different groups of people that are not members of a suspect or quasi-suspect classification, and the classification does not implicate a fundamental right, the law will survive an equal protection challenge if it is “rationally related to a legitimate governmental interest.” Rational-basis review is a deferential standard, but it is not “toothless.” Even neutral classifications must “rationally advanc[e] a reasonable and identifiable governmental objective.” When the relationship between a statutory classification and its goal is “so attenuated as to render the distinction arbitrary or irrational,” that distinction violates equal protection. Congress’ decision to exclude millions of U. S. citizens who reside in Puerto Rico from the SSI program fails even this deferential test. The United States contends, and the Court accepts, that Puerto Rico’s “tax status” provides a rational basis for excluding citizens who reside in Puerto Rico from the SSI program. As the United States argues, “Congress could rationally conclude that a jurisdiction that makes a reduced contribution to the federal treasury should receive a reduced share of the benefits funded by that treasury.” The Court holds that our prior decisions in Califano v. Torres, 435 U. S. 1 (1978) (per curiam), and Harris v. Rosario, 446 U. S. 651 (1980) (per curiam), require acceptance of this rationale. It is true that both Califano and Harris relied on Puerto Rico’s tax status to justify the unequal treatment of its residents. Neither case, however, stood for the principle that Puerto Rico’s tax status could justify any and all unequal treatment of its residents, and neither addressed the claims at issue here. Califano resolved a claim under the right to travel, while Harris decided a challenge to the unequal distribution of block grants to the States and Puerto Rico under a separate benefits program. Those cases do not preclude an equal protection challenge to a uniform, federalized, direct-to-individual poverty reduction program like SSI. Moreover, as summary dispositions, Califano and Harris are not “of the same precedential value as would be an opinion of this Court treating the question on the merits.”And both Califano and Harris rested on the mistaken premise that residents of Puerto Rico do not contribute at all to the Federal Treasury. Here, the United States concedes that “residents of Puerto Rico make some contributions to the federal treasury.” Moreover, the Court overlooks the fact that SSI establishes a direct relationship between the recipient and the Federal Government. The Federal Government develops uniform eligibility criteria, recipients apply for assistance directly to the Federal Government, and the Federal Government disperses funds directly and uniformly to recipients without regard to where they reside. Indeed, when it created SSI, Congress replaced existing programs that differed between States as well as between States and Territories and that involved States and Territories in administering the programs. Under the current system, the jurisdiction in which an SSI recipient resides has no bearing at all on the purposes or requirements of the SSI program. For this reason alone, it is irrational to tie an individual’s entitlement to SSI to that individual’s place of residency. While it is true that residents of Puerto Rico typically are exempt from paying some federal taxes,5 that distinction does not create a rational basis to distinguish between them and other SSI recipients. By definition, SSI recipients pay few if any taxes at all, as the First Circuit correctly recognized below: “[B]y its very terms, only low-income individuals lacking in monetary resources are eligible” for SSI. In fact, to qualify for SSI, recipients must have an income well below the standard deduction for single tax filers. Ibid. It is “antithetical to the entire premise of the program” to hold that Congress can exclude citizens who can scarcely afford to pay any taxes at all on the basis that they do not pay enough taxes. In some cases, it might be “reasonable for Congress to take account of the general balance of benefits to and burdens on” citizens when deciding eligibility for benefits. That is not a rational basis for this classification, however, because SSI is a means-tested program of last resort for the poorest Americans who lack the means even to pay taxes. Residents of Puerto Rico who would be eligible for SSI are like SSI recipients in every material respect: They are needy U. S. citizens living in the United States. The Court cautions that holding this classification unconstitutional would “usher in potentially far-reaching consequences,” such as requiring the extension of other federal programs to citizens who reside in all Territories. It bears noting that tax status did not preclude Congress’ extension of SSI to the Northern Mariana Islands, undermining that justification as a rational basis to distinguish Puerto Rico from the States. In any event, the Court identifies no federal program other than SSI that operates in such a uniform, nationalized, and direct manner. For instance, the Supplemental Nutrition Assistance Program is administered by local governments. That distinction alone may justify differential treatment by jurisdiction of residence. In fact, it is the Court’s holding that might have dramatic repercussions. If Congress can exclude citizens from safety-net programs on the ground that they reside in jurisdictions that do not pay sufficient taxes, Congress could exclude needy residents of Vermont, Wyoming, South Dakota, North Dakota, Montana, and Alaska from benefits programs on the basis that residents of those States pay less into the Federal Treasury than residents of other States.6 Congress has never enacted a uniform, nationalized direct assistance program, and then excluded entire States on the basis that the taxpaying residents of that State do not pay sufficient federal taxes. The Court’s holding today suggests that doing so would be constitutional and not a violation of the Constitution’s promise of equal protection of citizens. SSI is designed to support the neediest citizens. As a program of last resort, it is aimed at preventing the most severe poverty. In view of that core purpose, denying benefits to hundreds of thousands of eligible Puerto Rico residents because they do not pay enough in taxes is utterly irrational. Congress’ decision to deny to the U. S. citizens of Puerto Rico a social safety net that it provides to almost all other U. S. citizens is especially cruel given those citizens’ dire need for aid. Puerto Rico has a disproportionately large population of seniors and people with disabilities. The Census Bureau estimated that in 2019, 43.5% of residents of Puerto Rican residents lived below the poverty line—more than triple the national percentage of 12.3%. Equal treatment of citizens should not be left to the vagaries of the political process. Because residents of Puerto Rico do not have voting representation in Congress, they cannot rely on their elected representatives to remedy the punishing disparities suffered by citizen residents of Puerto Rico under Congress’ unequal treatment. The Constitution permits Congress to “make all needful Rules and Regulations” respecting the Territories. That constitutional command does not permit Congress to ignore the equally weighty constitutional command that it treat United States citizens equally. I respectfully dissent. https://www.supremecourt.gov/opinions/21pdf/20-303_6khn.pdf ulmont fucked around with this message at 20:12 on Apr 21, 2022 |
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Apr 21, 2022 20:03
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Potato Salad posted:Someone help me untangle Thomas' opining in bizarre Thomas does not believe that the 5th amendment grants equal protection by the federal government. Period. He does think you can get more or less to the same place through the Citizenship Clause.
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Apr 21, 2022 20:05
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Gorsuch calling out the Insular Cases? He continues to have a surprising side. Maybe they could get Roberts to sign off on overturning those, doubt it though. LOL at the thought beer, cultist, insurrectionist or empty hateful suit would agree
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Apr 21, 2022 20:19
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Wait, Gorsuch... I skimmed it but.... good?
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Apr 21, 2022 20:21
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