SCOTUS 2023: Rice pilaf from Louisiana...is that like an ISIS video?

The Something Awful Forums > Discussion > Debate & Discussion > SCOTUS 2023: Rice pilaf from Louisiana...is that like an ISIS video?

oldfan: Jul 22, 2007; "Mathewson pitched against Cincinnati yesterday. Another way of putting it is that Cincinnati lost a game of baseball."

Ginsburg spent over a decade on the DC Circuit where she developed a reputation as a moderate, and by the time she was put up for the Supreme Court nothing she argued for as an appellate attorney on the gender side was all that controversial. (Probably didn't hurt that she's one of the left's foremost Roe critics.) Also worth noting that Ginsburg and especially Breyer were largely put up for the Court on the recommendation of Orrin Hatch of all people.

# ¿ Dec 2, 2013 19:36

Adbot: ADBOT LOVES YOU

# ¿ Apr 27, 2024 09:00

oldfan: Jul 22, 2007; "Mathewson pitched against Cincinnati yesterday. Another way of putting it is that Cincinnati lost a game of baseball."

Amarkov posted:

And they were the 7 justices that ruled the same way on the 5-4 case, because oh my god that loving case. Broad overview (because I'm too lazy to effortpost right now):

Every justice except Ginsburg and Stevens agreed that the Florida recounts were unconstitutional, because the lack of a clear statewide ballot standard violated the Equal Protection Clause. Breyer and Souter argued that, to remedy this, the case should be remanded to Florida with instructions to establish a uniform standard and apply it.

But an old provision of federal law says that, if a state has made a "final determination" of its Electoral College representatives by six days before the meeting, those electors are locked in. The remaining five justices ruled that the Supreme Court of Florida had ruled that the Florida Legislature had intended pre-recount tallies in elections to be a "final determination". Since there was no time to complete a recount between the Supreme Court's decision on December 12 and the six day deadline on December 12, the original result had to be locked in as the final one.

Nah, Breyer was a Clinton appointee and Stevens was a Ford appointee, also Breyer and Souter made a patented Stephen Breyer strategic partial concurrence that they didn't really believe in to try and lure O'Connor or Kennedy to a middle ground position (note that this strategy actually worked in the PPACA case).

# ¿ Dec 3, 2013 21:50

oldfan: Jul 22, 2007; "Mathewson pitched against Cincinnati yesterday. Another way of putting it is that Cincinnati lost a game of baseball."

Hobby Lobby is likely to be a narrow ruling one way or the other on interpretation of RFRA that carries little weight in other cases. Like with National Federation, the real problem with this case is that the PPACA was just a dreadfully drafted bill.

# ¿ Dec 4, 2013 17:24

oldfan: Jul 22, 2007; "Mathewson pitched against Cincinnati yesterday. Another way of putting it is that Cincinnati lost a game of baseball."

Kalman posted:

Which would be hard to square with the logic of the ruling in Citizens United. So, I mean, it could happen - but it's very unlikely.

How? I see basically no connection between the cases outside of broad stroke media/interest group wailing, certainly no legal rationale. Citizens United is not substantively cited in any of the briefs in any of these cases, there's even only one errata citation to it in Clement's brief.

# ¿ Dec 4, 2013 18:09

oldfan: Jul 22, 2007; "Mathewson pitched against Cincinnati yesterday. Another way of putting it is that Cincinnati lost a game of baseball."

Kalman posted:

Read CU carefully. CU's core logic deals with the concept that groups of persons (e.g., corporations) don't lose rights of those persons simply because they're a group. I'm not saying they'll cite to it - I'm saying expecting this court to distinguish between religious objections based on whether a person or a corporation exerts those objections is a dangerous expectation.

Paul MaudDib posted:

The case law is here, from Professor Volokh. The quote here is a decent summary.

Right, but corporate personhood is not Citizens United, that's a bunch of cases decided long before Citizens United. What Citizens United says is that the corporate personhood concept extends at least X far in the context of electioneering constitutional free speech; that's a very specific thing. Here we're asking whether it extends at least Y far in the context of RFRA absent any real evidence that Congress intended it to or not to. This is mainly a statutory interpretation problem, not a constitutional one, and it's really kind of a weirdly cool statutory theory case than any of the stuff people are ascribing to it.

# ¿ Dec 4, 2013 19:29

oldfan: Jul 22, 2007; "Mathewson pitched against Cincinnati yesterday. Another way of putting it is that Cincinnati lost a game of baseball."

Kalman posted:

Right. What CU says isn't at all on point, but WHY it said it does matter.

I don't know that we should be pulling out thin strands from the increasingly tortured body of election law and imagining how that might apply to RFRA, which itself is a tortured area of law but in a hugely different way. The idea that corporations have some personal rights is not really at issue here.

# ¿ Dec 4, 2013 20:00

oldfan: Jul 22, 2007; "Mathewson pitched against Cincinnati yesterday. Another way of putting it is that Cincinnati lost a game of baseball."

Kalman posted:

But that wasn't the key to why CU went the way it did. The key was that quote I put in up thread - the Justices were suspicious of a rationale that gave rights to the individuals making up the corporation but took them away from the corporation.

You're looking for precedent, which isn't why I'm pointing at CU. I'm saying that it has predictive value because the justices think this way already with regard to first amendment rights of corporations and will likely continue to think this way when it comes to religious rights of corporations under RFRA.

The key question for me here is congressional intent/statutory interpretation; I don't think there's a Supreme Court case if RFRA specifically excludes or includes corporations. I don't see this case in a "First Amendment rights" past RFRA way at all, at least not the Hobby Lobby corporate rights side of it (and the Conestoga Wood half of the consolidation that reached more of the constitutional issues that get at Citizens United has huge standing problems because it asserts the constitutional rights of the owners to get there).

# ¿ Dec 4, 2013 20:55

oldfan: Jul 22, 2007; "Mathewson pitched against Cincinnati yesterday. Another way of putting it is that Cincinnati lost a game of baseball."

Kalman posted:

I'm saying that, absent an explicit statement in RFRA that it doesn't apply to corporations, this court will say that if an individual has a right under RFRA then a corporation will also have that right as an assembly of individuals. This, as I've said, is the same logic they used in CU - the fact that the underlying right is different between the two isn't relevant to their logic.

Except of course it's relevant because nobody suggests corporations have all legal rights of a person. The Court doesn't even suggest they have all constitutional rights, nor does it suggest that the default state is that the corporation has the right.

# ¿ Dec 4, 2013 22:13

oldfan: Jul 22, 2007; "Mathewson pitched against Cincinnati yesterday. Another way of putting it is that Cincinnati lost a game of baseball."

Kalman posted:

Absent anything explicit in the statute saying they don't, where do you expect the court to derive an argument that they shouldn't inherit the rights of the associated individuals forming the corporation from?

Well that's the interesting statutory interpretation question, isn't it? The 3rd Circuit rationale was basically "lol of course they didn't include corporations, that would be a loving ridiculous outcome" (and given the Chief Justice's vote in the other mandate case, don't underestimate this as a rationale in an ACA case where cleaner drafting presents no problems), the Western District of Oklahoma pointed out a lateral reference to standing in RFRA that makes no sense if corporations are included, the 6th Circuit just flat said that for-profits and their owners couldn't have standing for these kinds of RFRA claims, and the 9th Circuit actually ruled for Hobby Lobby but using a statutory interpretation model to get there through the Dictionary Act instead of just going "welp this is the default."

Paul MaudDib posted:

This gets back to the question of "pass-through" rights. Volokh:

http://www.volokh.com/2013/12/03/rfra-allow-exemptions-burdens-imposed-corporations/

Obviously I highly disagree with the practical implications of this, but it's a straightforward combination of corporate law and the RFRA. The real problem is that the RFRA is a poorly-written bill that has far-reaching implications and that the PPACA did not exempt itself from it.

I'd be very careful of accepting Professor Volokh's RFRA roadmap (which is largely couched in hypotheticals) as a substantive prediction of the Supreme Court's holding here. He's not really arguing what you think he's arguing.

# ¿ Dec 4, 2013 22:34

oldfan: Jul 22, 2007; "Mathewson pitched against Cincinnati yesterday. Another way of putting it is that Cincinnati lost a game of baseball."

Paul MaudDib posted:

Can you explain why he's not arguing what I think he's arguing, and give a counterargument or link a place I can find one?

Professor Volokh is not arguing what he expects the outcome of this case to be. He is giving a walkthrough, as a libertarian law professor, aimed at the masses, of what his idea of the general issues of this case are - a series which he has not yet concluded and certainly does not reach the conclusion as of yet that this is in any way "straightforward." But this is very much someone who is kind of out there on some of this stuff (I mean, he's a loving law professor) throwing out hypos to illustrate how he thinks it should go, not how it will.

Paul MaudDib posted:

Again, I just can't see this court going anti-religion and anti-corporation. Which of the conservatives would swing against corporate power and religions and avoid loving over a black Democratic president's signature achievement, and why?

Because they really don't always vote like this as if everything's a pop culture case, c.f. Chief Justice Roberts's plurality opinion in National Federation.

# ¿ Dec 4, 2013 22:54

oldfan: Jul 22, 2007; "Mathewson pitched against Cincinnati yesterday. Another way of putting it is that Cincinnati lost a game of baseball."

TinTower posted:

And you're going to have to find the Fifth Justice who's going to rule against Hobby Lobby; Kennedy hasn't joined the pro-choice side since Casey and Roberts has a murky history on abortion access in the lower rings too.

This isn't an abortion case at all. It's not even a little bit about abortion in the facts that don't really mean a whole lot except to the extent that the religious right attempts to conflate contraception and abortion, it's only about contraception coverage.

# ¿ Dec 5, 2013 04:53

oldfan: Jul 22, 2007; "Mathewson pitched against Cincinnati yesterday. Another way of putting it is that Cincinnati lost a game of baseball."

Baer was being a bit cheeky with the vague federal rule for certifying representative classes and plaintiffs (and I think, based on his comments, was practically doing so far more for affirmative action reasons than for proper representation) and Alito wanted to smack a liberal judge down and write his usual color blind constitution tripe but went pretty far over the line into what basically amounted to an unprofessional advisory opinion to do so. I don't see the broader claims over effectiveness of counsel here.

# ¿ Dec 9, 2013 06:58

oldfan: Jul 22, 2007; "Mathewson pitched against Cincinnati yesterday. Another way of putting it is that Cincinnati lost a game of baseball."

This could have went in about 12 different threads, but Pam Karlan is being appointed deputy assistant AG for the voting rights division, which is about the best response to Shelby County I think the administration could have come up with.

# ¿ Dec 20, 2013 22:41

oldfan: Jul 22, 2007; "Mathewson pitched against Cincinnati yesterday. Another way of putting it is that Cincinnati lost a game of baseball."

The Warszawa posted:

Splitting the 9th has been debated forever and ever, but good luck getting Congress to do it (or, in divided government, create enough judgeships).

Yep, the Democrats should have done this in the 111th, but they'd just spent a bunch of years coming up with lame reasons to fight it during the Bush 43 administration since they couldn't just be honest and say they didn't want to dilute the liberalness of the 9th Circuit.

# ¿ Dec 21, 2013 22:37

oldfan: Jul 22, 2007; "Mathewson pitched against Cincinnati yesterday. Another way of putting it is that Cincinnati lost a game of baseball."

AATREK CURES KIDS posted:

Gay marriage has been suspended in Utah as the case works its way up to the Supreme Court. Is it possible this could lead to a ruling making gay marriage legal in all 50 states?

Eventually, but the case will probably take about another year and a half to two years to filter up at a minimum unless SCOTUS decides it wants it sooner (and if they really wanted that they could have reached the merits in Perry), and maybe longer. There's still a lot of steps to go.

# ¿ Jan 6, 2014 19:37

oldfan: Jul 22, 2007; "Mathewson pitched against Cincinnati yesterday. Another way of putting it is that Cincinnati lost a game of baseball."

Amused to Death posted:

Bur does SCOTUS even really need to take it up unless the appeal courts start making different rulings?

Technically no, but I don't think anyone wants to leave a hot button body of law in a piecemeal fashion based on reading between the lines of a five justice majority holding on a pair of cases that specifically ducked that exact question. Also just as a matter of conference politics, if inferior judges keep reading Windsor in this way, the four likely anti-SSM justices are going to want to grant certiorari to make the five likely pro-SSM justices actually write it explicitly since it's no-lose for the anti-SSM side.

# ¿ Jan 6, 2014 19:47

oldfan: Jul 22, 2007; "Mathewson pitched against Cincinnati yesterday. Another way of putting it is that Cincinnati lost a game of baseball."

Not that I don't appreciate a little hyperbole, but it is clearly settled law that what the ACLU describes the "Constitution Free Zone" only exists at the border itself or functional equivalents thereof, i.e. international customs for airports or international ferry stops. Where the 100 mile image meme comes from is that interior border checkpoints can theoretically be up to 100 miles inland of the border itself, but that image has been floating around for over five years now and even the ACLU acknowledges that it's being used out of context.

The case recently in E.D.N.Y., Abidor v. Napolitano, is addressing an entirely different question than the 100 mile stuff, one that only applies at the border: what standard applies for border searches of electronic devices. The Supreme Court has long and pretty much uncontroversially held that the government has a general right to do routine border searches since the location itself makes them reasonable absent other circumstances, and that invasive border searches require a reasonable suspicion burden to be met. Where the lower courts have generally landed for electronic device searches, and where the Abidor case landed (though largely in dicta), is that electronic devices don't have any heightened protections that, say, a notebook or a picture album wouldn't have. They can generally be searched, but for more invasive or exacting searches you need a reasonable suspicion, and for most forms of copying or retention you need probable cause.

I don't even think there's a Supreme Court decision coming on this one because they've declined to take cases that presented similar questions that were less procedurally tortured, and I suspect a Supreme Court decision would come out 9-0 or 8-1 in favor of the government, not 5-4. They did grant for later in the term an interesting pair of cases yesterday dealing with cell phone searches incident to lawful arrests, so the greater 4th Amendment questions about electronic device privacy are out there.

oldfan fucked around with this message at 18:53 on Jan 18, 2014

# ¿ Jan 18, 2014 18:49

oldfan: Jul 22, 2007; "Mathewson pitched against Cincinnati yesterday. Another way of putting it is that Cincinnati lost a game of baseball."

KernelSlanders posted:

I'm curious to hear people's impression of Navarette v. California. I know it's not in the record on this particular case, but with the context of NSA leaking information to domestic law enforcement the standard California seeks would seem to create a pretty big loop hole in the fourth amendment. Wouldn't their standard create a way for officers to scrub fruits of a tainted tree in a way? That is, conduct an illegal search surreptitiously and then "anonymously" inform a clean-team officer that a crime was being committed. Permitting such a practice seems more insidious in a situation where state secrets privilege makes discovery of the illegal search impossible.

I'd be surprised if such a holding went much past BOLOs for drunk or reckless drivers, although trying to predict SCOTUS crim pro holdings based on argument is a fool's errand.

# ¿ Jan 22, 2014 18:17

Adbot: ADBOT LOVES YOU

# ¿ Apr 27, 2024 09:00

oldfan: Jul 22, 2007; "Mathewson pitched against Cincinnati yesterday. Another way of putting it is that Cincinnati lost a game of baseball."

ComradeCosmobot posted:

So Merrick Garland is just another ideological extremist like Robert Bork? That's too bad. I guess Obama just doesn't care about compromise.

(I refer of course to the fact that Bork is the only nominee in recent history blocked due to his politics, but even he got a hearing.)

It's been framed differently for history's sake - as an executive disclosure issue to conservatives and as a competency issue to liberals - but make no mistake, Harriet Miers was absolutely blocked due to ideology. By her own party! And if you believe Jeff Toobin and others, they were wrong and she was a far-right reactionary, perhaps even better for the cause than Alito.

The Senate is probably going to end up having to confirm Garland at some point or another, but McConnell is facing a populist revolt in an ongoing presidential primary, one where the widely disliked senator that McConnell hasn't been able to wrangle isn't even the party's biggest problem. Mitch is basically stuck until there's a presidential nominee, and he has to maintain the idea that he has control of a unified caucus on this in the meantime. Obama in his nomination speech even subtly recognized this by asking for a schedule to confirm Garland by the beginning of OT 2016, which gives McConnell, Grassley, et al. around six months to organize a surrender if the political conditions are such to do so.

# ¿ Mar 20, 2016 21:08

The Something Awful Forums > Discussion > Debate & Discussion > SCOTUS 2023: Rice pilaf from Louisiana...is that like an ISIS video?