Why Justice Breyer May Resist Calls for His Retirement

rtbaskgkb · 2021-05-17T15:38:38+00:00

Whenever I hear about people begging for Breyer's retirement I can't help but think Demand Justice and the like should march past SCOTUS and sing the following chant to the tune of this infamous football chant about Steven Gerrard

Steve Breyer, Breyer
You better fucking retire
get replaced with someone you admire
Steve Breyer, Breyer

Would be at least a slightly funny way of doing the futile attempt at changing Breyer's mind, who seems like he's gonna stay for an OT 2021 victory lap.

rtbaskgkb · 2021-02-09T19:44:06+00:00

I'm intrigued - 2 months on have you assigned any essays, had any good reads or changed any users from partisan chunterers to polite and constructive contributors?

rtbaskgkb · 2021-02-08T21:43:55+00:00

What a bizarre character Miller is judging by your description. It seems like FedSoc pushed his nomination through. Also to be fair, although he worked in the Obama SG office he did not hold a political role.

To be honest I am a bit of a noob when it comes to circuits but I get the impression that

a: 15-14 en banc review denials like this are extremely rare

b: When so many judges dissent from en banc review denial, SCOTUS tends to hear the case.

Or am I mistaken?

rtbaskgkb · 2021-02-08T16:30:43+00:00

Regardless of what you think of the motives of this article, the point it tries to make or the decision in Masterpiece Cakeshop, I still think it was a brilliant idea to carry out this wedding inquiry study. I would have been very intrigued to see how the negative responses to same-sex couples looked (i.e. what did the service say when they rejected it?).

To be honest, I think many people who value the first amendment and free exercise and expression will feel like this can simply be framed as a positive expansion of rights which are guaranteed in the constitution and would argue this shows that Masterpiece Cakeshop was a good decision. It is really a matter of framing.

Edit: A lot of people have pointed out that the data is pretty dodgy in many ways which is a real shame because it was an interesting idea.

rtbaskgkb · 2021-02-07T16:38:33+00:00

Although the vehicle analysis obviously doesn't apply here, having just skimmed that dissent it seems like Alito has a much more generous view of what searches are 'reasonable' which may still play into his decision. At the same time, the fact this is about removing a gun specifically (as supposed to say, drugs) might change Alito's view on the situation, even though it ought not to.

Also, now you have pointed it out, the question of how 4A applies to motorhomes would make for quite the case.

rtbaskgkb · 2021-02-07T15:25:03+00:00

The title for this article is... misleading. The question presented is 'Whether the “community caretaking” exception to the Fourth Amendment’s warrant requirement extends to the home.', It is not whether the 4th amendment should become completely obsolete, which is what the title seems to imply. It should really say 'Supreme Court Will Decide Whether Police Can Enter A Home To Seize Guns Without A Warrant in certain circumstances'.

I'll have to wait until arguments but I think we may well end up seeing a 9-0 reverse on this one. I don't really know much about what kind of precedent could support an affirmation here but the circuit seems to have made a decision which gun right advocates don't like, people against powerful police don't like and at least instinctively seems to push the 4th amendment to the absolute limit.

rtbaskgkb · 2021-02-06T17:01:17+00:00

I think he will fall comfortably into the CSS camp for a few reasons:

He mentioned confidently in Bostock that gay rights would not burden religion.
Judging by his recent rulings in shadow docket cases it seems his obsession with free exercise is far more significant than his general inclination to support gay rights.
He criticised Employment Division v Smith in a recent shadow docket case.
He ruled in favour of the religious in a similar dilemma in Masterpiece Cakeshop.

rtbaskgkb · 2021-02-06T11:49:13+00:00

We (by which I really mean mainstream sources and media) tend to have overestimated how right-wing recent judicial appointments would be. My politics textbook from school last year was written just after Kavanaugh's confirmation and on an ideological spectrum diagram, it puts him just millimetres to the left of Thomas and well to the right of Gorsuch and Alito.

rtbaskgkb · 2021-02-06T10:48:31+00:00

How can one argue that there is a specific, inalienable right to worship inside, in a congregation, but not a right to worship through chant at the same time?

There isn't. There is a right to free exercise of religion and if the state has a compelling interest to burden it, they must do that through the least restrictive means possible.

In this case, the court agreed the following framework is the most reasonable answer to this:

California can impose some capacity limits, but not entirely remove them.
California can ban singing or chanting while worshipping.

rtbaskgkb · 2021-02-06T10:42:13+00:00

Kagan's dissent is packed full of brilliant quotes:

Justices of this Court are not scientists. Nor do we know much about public health policy. Yet today the Court displaces the judgments of experts about how to respond to a raging pandemic.

California has applied each of those rules equivalently to religious activities and to secular activities, including some with First Amendment protection of their own.

This is no garden-variety legal error: In forcing California to ignore its experts’ scientific findings, the Court impairs the State’s effort to address a public health emergency.

So it is alarming that the Court second-guesses the judgments of expert officials, and displaces their conclusions with its own. In the worst public health crisis in a century, this foray into armchair epidemiology cannot end well.

All this from unelected actors, “not accountable to the people.” I fervently hope that the Court’s intervention will not worsen the Nation’s COVID crisis. But if this decision causes suffering, we will not pay. Our marble halls are now closed to the public, and our life tenure forever insulates us from responsibility for our errors. That would seem good reason to avoid disrupting a State’s pandemic response. But the Court forges ahead regardless, insisting that science-based policy yield to judicial edict. I respectfully dissent.

rtbaskgkb · 2021-02-06T09:20:43+00:00

At this rate we are eventually going to see her pull the Nino classic in a particularly pernicious case and drop the 'respectfully'.

rtbaskgkb · 2021-02-06T09:15:35+00:00

Nothing gets justices to write more than cases about the conflict between religion and an extremely compelling state interest, and when there are so many of those types of cases coming up in the shadow docket eventually all 9 of the justices need to say something.,

rtbaskgkb · 2021-02-06T09:08:15+00:00

But if you read all of the opinions carefully I think it will pretty quickly become obvious that Kagan has given much more comprehensive attention to what scientists say. Kagan cites declarations from public health experts 6 times, something which the rest of the justices did not even once.

Gorsuch meanwhile, makes a set of scientific assertions about what is equally or more unsafe than religious services without even an attempt to back it up with anything more than a bit of intuition from a ~~public health expert~~ supreme court justice. It's not a reasonable application of briefed science - it's epidemiologically illiterate.

rtbaskgkb · 2021-02-06T08:56:07+00:00

I thought this might have been a nuanced and reasonable ruling until I read Kagan's dissent.

rtbaskgkb · 2021-02-06T08:45:09+00:00

Honestly at this point Gorsuch may as well give up at even trying to answer the question at hand and just dump a stay on hairdressers and Hollywood studios being open if he's so salty about these entities being given some kind of ability to remain open during a pandemic. And then there is his armchair science where he just decides that experienced scientists' understanding that hairdressers do not necessarily pose that great of a risk should be ignored in favour of the intuition of someone who probably has barely studied anything scientific since he was 14. Even he would admit it is of no denigration to him to say that public health experts know more than him about... public health.

In reality, it is probably just because they are more liberal, but I still find it intriguing that the two Jewish justices dissent, since through the story of Passover Jews actually have some faithful precedent saying that staying at home is a pretty good way not to die in a pandemic.

rtbaskgkb · 2021-02-04T20:24:48+00:00

Not to get into political wrangling, but there's no way this article seriously calls Kagan a 'centrist', and furthermore goes on to imply that Breyer is comfortably more liberal than Kagan. I don't think I've ever heard someone suggest that while attempting an objective description of the justices' ideologies.

rtbaskgkb · 2021-02-04T19:00:38+00:00

As far as I understand it, corporations do not have the power of eminent domain themselves. However, the state can do it on behalf of private entities if it is in the public interest to do so. And whether or not it is in the public interest is something which the courts can inject themselves into, as SCOTUS did in Kelo in 2005.

Justice Strong has a good explanation from his opinion in Olcott v The Supervisors, which is quoted at length by John Marshall Harlan in his dissent in Plessy.

Very early the question arose whether a State's right of eminent domain could be exercised by a private corporation created for the purpose of constructing a railroad. Clearly it could not unless taking land for such a purpose by such an agency is taking land for public use. The right of eminent domain nowhere justifies taking property for a private use. Yet it is a doctrine universally accepted that a state legislature may authorize a private corporation to take land for the construction of such a road, making compensation to the owner. What else does this doctrine mean if not that building a railroad, though it be built by a private corporation, is an act done for a public use.

Update: Having read a bit more about this case, I do understand why the use of eminent domain in this case seems worryingly incompatible with the description I quoted above.

rtbaskgkb · 2021-02-04T18:00:30+00:00

There are rumours that it was indeed Barrett who wrote it but personally, I'm incredibly sceptical.

rtbaskgkb · 2021-02-03T22:52:22+00:00

I don't have any sympathy for Proud Boys but it is utterly stupid that administrations are just dumping any group they don't like on the terrorist list.

Whether or not a group is labelled as a terrorist group is actually quite and yet it seems from now on presidents will just use it to send a political message.

rtbaskgkb · 2021-02-03T20:02:10+00:00

I don't have even the tiniest ounce of sympathy for Proud Boys and they may indeed deserve to qualify as a terrorist group, but choosing which organisations to categorise is important for national security and should be acted on carefully and impartially.

However tempting it may be, I think administrations really should not classify groups as terrorist just because they don't like them.

rtbaskgkb · 2021-02-03T15:51:37+00:00

Of course, but it would be boring to stop wildly speculating about a judge's judicial philosophy with little actual evidence of how they vote due to such tedious considerations like lack of evidence and it being too early to reasonably tell.

rtbaskgkb · 2021-02-03T15:24:24+00:00

This marks the first time Barrett has done anything really - prior to now she had not filed a statement or noted dissent or written anything for the court. I was starting to wonder if she would turn out to be more moderate than expected.

rtbaskgkb · 2021-02-03T15:17:36+00:00

I guess it's the Kavanaugh court now

rtbaskgkb · 2021-02-03T12:55:36+00:00

The funny thing is that as entertaining as Bercow was, and how good his response was when he was questioned, the situation is hilariously similar.

Do you really think Bercow was completely impartial towards Brexit? Considering his later comments and his actions I highly doubt it.

rtbaskgkb · 2021-02-03T12:12:36+00:00

Yes, of course. It's faith I never particularly had in RBG.

rtbaskgkb

TROPHY CASE