The justices wrapped up their scheduled annual business with a series of blockbuster rulings reinforcing just how far to the right the Court has moved since 2018
The student loan decision is the most troubling. It seems like judicial overreach at its worst. Kagan’s dissent explains why there was no standing to bring the case. Regarding the merits, people can disagree on what the language of the HEROES statute means. But Kagan makes a strong case that the Secretary of Education had been granted power to act as he did.
In this case, the Court should defer to the administration and/or Congress.
Kagan accusing the majority of violating the Constitution is a strong statement. Glad she wrote it!
Thank you Christopher. More specifically administrative law & Congressional statutes, you know 3 branches of government tempered by the Rule of Law.
With 3 Creative LLC, Gorsuch gave us Deep Fake 'standing' pursuant to a prior CO AG "Stipulations" that Gorsuch loved to shoe horn his 6-3 Opinion into an Opinion now subject to collateral attack. Looking at you current CO AG Philip J. Weiser. File a Motion for Re-Hearing within 25 Days at SCOTUS, please.
While you (and for most part I) may wish the court was less conservative why do you talk as if that conservative shift is somehow itself an independent reason for criticism or illegitimate (as opposed to merely leveling normal criticism of opinions)? Ultimately, SCOTUS, like all branches of government is supposed to reflect the choices made by the people via the (imperfect and semi-random) political process.
And a cornerstone of democratic government is that when we lose political contests we aren't supposed to accuse the government of illegitimacy as a result -- just try harder to win next time. So I worry about the willingness of so many law profs on the left to suggest that the court is illegitimate because the other side got people with their values appointed.
Conservatives made getting justices with a certain philosophy a non-negotiable cornerstone of their politics over decades and managed to win enough elections to get their justices a majority on the court. And while I may not like what they are doing it seems no different in kind to the liberal justices who decided cases like Miranda, Roe and the temporary ban on the death penalty -- only different in the guiding values. As Eric Seagall keeps saying: all justices inject their values into their deciscions.
Thus, imo, the only things extraordinary about the current situation is the fact that the political process selected justices whose values are farther from those held by the left for first time many people can remember -- and the fact that so many legal scholars seem to think that fact alone justifies calling the legitimacy of the court into question.
I don't like a number of recent deciscions but -- just as with Trump -- that just means I'm motivated to try and make sure we elect people who will appoint less conservative justices. I hope that I succeed but a democratic system of government requires that we don't call the result illegitimate when we lose.
To be clear, that's no reason not to continue to make substantive criticisms about things like the shadow docket the same way one should critisize a president of the other party. But I get this sense from your writing that you don't just see this court as an unfortunate choice but as somehow not a legitimate exercise of the political power of the people who made the appointment of these justices a priority
But maybe Twitter is just damaging my brain.
(and yes politics is supposed to give people who focus on a single issue more influence on that than those who spread their concerns out over many issues..think of it as spending your voting points on one issue or diversifying).
We are at the point where the court has been so corrupted and compromised that it’s rulings that fly in the face of established precedent and the the clear law just need to be ignored. The survival of Democracy is at stake. We cannot let 5 or 6 corrupt people bring down American Democracy, we just can’t.
I'm having some confusion about the 303 Creative case on the basis of the underlying assumption. Surely an artist can create an object with a religious expression. Take a hand made, jeweled rosary. Selling it wouldn't be a violation of anything. What WOULD be a violation is refusing to sell it to a Muslim because that would be "endorsing" a religion the maker dislikes.
Plaintiff here actually SAID any sites she designs would "express Ms. Smith’s and 303 Creative’s message celebrating and promoting” her view of marriage." How is letting people know that her product does so violate anything any more than crafting a poster that says "God Bless This House?" (Amazon has 104 of those on sale right now.) Prospective customers could then choose. Who knows, some religious gay couple might WANT that because of how they interpret marriage. Few would, of course. Just as few Muslims would buy the rosary.
It seems to me that the "imminent danger of administrative action" that the 10th Circuit used to find standing is a thing entirely within Creative 303's control. All she had to do was advise folks "this is what my website does." Instead she wants to be able to discriminate by not ALLOWING gay couples to use her site. She doesn't have to say "I won't serve gay couples"--all she has to say is "any site I design expressly celebrates my biblical views of marriage. Take it or leave it."
What am I missing? If I'm not, did Colorado miss something in its arguing?
Or is it OK now to refuse to sell a handcrafted rosary to a Muslim?
Oops, this follows the one below“. But Justice Kagan's second sentence seems to hinge upon the emphasis one places on/among three critical words: "any"; "more"; and "demanding". If you read it with emphasis on all three words: "any","more" and "demanding",it opens up the possibility that she suggests that the test she put forth in her first sentence is 'just a bit too demanding'. If you read her second sentence with emphasis on the "more", you can pick up her suggestion that the State had only to prove conscious disregard of a substantial risk.
But, Steve, would you comment on what, for me is the almost too-obvious possibility that her writings would apply in an eerily-perfect fashion to Trump's motives in 'winding up' his followers with his speech on the ellipse on the morning of January 6th, 2021.
Re: Counterman v Colorado - - Justice Kagan's two 'magic sentences' seem to confuse the reader, , to a degree. She set it up with the reasonable expectation that the State must prove that a defendant consciously disregarded the substantial risk that his/her communications would be viewed by, , (a presumably by rational person), as threatening violence.
“The State must show that the defendant consciously disregarded a substantial risk that his communications would be viewed as threatening violence. The State need not prove any more demanding form of subjective intent to threaten another.” Whether the first sentence or the second turns out to be more important will have a lot to do with how significant the ruling is going forward
Great “One First” column today, Steve. Your summaries are right on point. And, for whatever it’s worth, I agree that in sum, the implications of the decisions are very significant, and portend even worse results that these particular decisions create in the moment. Those commenters who are describing the decisions this term as “conservative but not MAGA” are understating the implications, which seem imminent (meaning, in Supreme Court terms, playing out over the next few years). Thanks for all of your insight.
The student loan decision is the most troubling. It seems like judicial overreach at its worst. Kagan’s dissent explains why there was no standing to bring the case. Regarding the merits, people can disagree on what the language of the HEROES statute means. But Kagan makes a strong case that the Secretary of Education had been granted power to act as he did.
In this case, the Court should defer to the administration and/or Congress.
Kagan accusing the majority of violating the Constitution is a strong statement. Glad she wrote it!
Thank you Christopher. More specifically administrative law & Congressional statutes, you know 3 branches of government tempered by the Rule of Law.
With 3 Creative LLC, Gorsuch gave us Deep Fake 'standing' pursuant to a prior CO AG "Stipulations" that Gorsuch loved to shoe horn his 6-3 Opinion into an Opinion now subject to collateral attack. Looking at you current CO AG Philip J. Weiser. File a Motion for Re-Hearing within 25 Days at SCOTUS, please.
While you (and for most part I) may wish the court was less conservative why do you talk as if that conservative shift is somehow itself an independent reason for criticism or illegitimate (as opposed to merely leveling normal criticism of opinions)? Ultimately, SCOTUS, like all branches of government is supposed to reflect the choices made by the people via the (imperfect and semi-random) political process.
And a cornerstone of democratic government is that when we lose political contests we aren't supposed to accuse the government of illegitimacy as a result -- just try harder to win next time. So I worry about the willingness of so many law profs on the left to suggest that the court is illegitimate because the other side got people with their values appointed.
Conservatives made getting justices with a certain philosophy a non-negotiable cornerstone of their politics over decades and managed to win enough elections to get their justices a majority on the court. And while I may not like what they are doing it seems no different in kind to the liberal justices who decided cases like Miranda, Roe and the temporary ban on the death penalty -- only different in the guiding values. As Eric Seagall keeps saying: all justices inject their values into their deciscions.
Thus, imo, the only things extraordinary about the current situation is the fact that the political process selected justices whose values are farther from those held by the left for first time many people can remember -- and the fact that so many legal scholars seem to think that fact alone justifies calling the legitimacy of the court into question.
I don't like a number of recent deciscions but -- just as with Trump -- that just means I'm motivated to try and make sure we elect people who will appoint less conservative justices. I hope that I succeed but a democratic system of government requires that we don't call the result illegitimate when we lose.
To be clear, that's no reason not to continue to make substantive criticisms about things like the shadow docket the same way one should critisize a president of the other party. But I get this sense from your writing that you don't just see this court as an unfortunate choice but as somehow not a legitimate exercise of the political power of the people who made the appointment of these justices a priority
But maybe Twitter is just damaging my brain.
(and yes politics is supposed to give people who focus on a single issue more influence on that than those who spread their concerns out over many issues..think of it as spending your voting points on one issue or diversifying).
We are at the point where the court has been so corrupted and compromised that it’s rulings that fly in the face of established precedent and the the clear law just need to be ignored. The survival of Democracy is at stake. We cannot let 5 or 6 corrupt people bring down American Democracy, we just can’t.
I'm having some confusion about the 303 Creative case on the basis of the underlying assumption. Surely an artist can create an object with a religious expression. Take a hand made, jeweled rosary. Selling it wouldn't be a violation of anything. What WOULD be a violation is refusing to sell it to a Muslim because that would be "endorsing" a religion the maker dislikes.
Plaintiff here actually SAID any sites she designs would "express Ms. Smith’s and 303 Creative’s message celebrating and promoting” her view of marriage." How is letting people know that her product does so violate anything any more than crafting a poster that says "God Bless This House?" (Amazon has 104 of those on sale right now.) Prospective customers could then choose. Who knows, some religious gay couple might WANT that because of how they interpret marriage. Few would, of course. Just as few Muslims would buy the rosary.
It seems to me that the "imminent danger of administrative action" that the 10th Circuit used to find standing is a thing entirely within Creative 303's control. All she had to do was advise folks "this is what my website does." Instead she wants to be able to discriminate by not ALLOWING gay couples to use her site. She doesn't have to say "I won't serve gay couples"--all she has to say is "any site I design expressly celebrates my biblical views of marriage. Take it or leave it."
What am I missing? If I'm not, did Colorado miss something in its arguing?
Or is it OK now to refuse to sell a handcrafted rosary to a Muslim?
Professor Vladeck, where can we read more on your views about Heller and the Second Amendment (and scholarship on militias in early America)?
Oops, this follows the one below“. But Justice Kagan's second sentence seems to hinge upon the emphasis one places on/among three critical words: "any"; "more"; and "demanding". If you read it with emphasis on all three words: "any","more" and "demanding",it opens up the possibility that she suggests that the test she put forth in her first sentence is 'just a bit too demanding'. If you read her second sentence with emphasis on the "more", you can pick up her suggestion that the State had only to prove conscious disregard of a substantial risk.
But, Steve, would you comment on what, for me is the almost too-obvious possibility that her writings would apply in an eerily-perfect fashion to Trump's motives in 'winding up' his followers with his speech on the ellipse on the morning of January 6th, 2021.
Re: Counterman v Colorado - - Justice Kagan's two 'magic sentences' seem to confuse the reader, , to a degree. She set it up with the reasonable expectation that the State must prove that a defendant consciously disregarded the substantial risk that his/her communications would be viewed by, , (a presumably by rational person), as threatening violence.
“The State must show that the defendant consciously disregarded a substantial risk that his communications would be viewed as threatening violence. The State need not prove any more demanding form of subjective intent to threaten another.” Whether the first sentence or the second turns out to be more important will have a lot to do with how significant the ruling is going forward
Great “One First” column today, Steve. Your summaries are right on point. And, for whatever it’s worth, I agree that in sum, the implications of the decisions are very significant, and portend even worse results that these particular decisions create in the moment. Those commenters who are describing the decisions this term as “conservative but not MAGA” are understating the implications, which seem imminent (meaning, in Supreme Court terms, playing out over the next few years). Thanks for all of your insight.