Jul 1, 2023·edited Jul 1, 2023Liked by Chris Geidner
Congrats on a SCOTUS session in the books, Chris. Your writing and analysis helps this old non-JD understand where this radical, illegitimate Court is taking our country we all love so much. Have a safe and happy Fourth; see you next week around the substack, as the kids today say
You picked a doozy of a term to start this blog. And, if the decision to grant cert on the domestic violence firearm issue is indicative, you have another wild coming from the crazy six! Get rested.
When breathing is once again possible, I'd love to hear your analysis of the standing "non-issue" in the Creative 303 case. There is some indication that it was achieved by a false filing by plaintiffs. Do you think this might be true?
But was the fear of enforcement credible? There is a big difference between
a) describing the nature of your product and letting the prospective client choose whether or not to buy it and
b) refusing to sell to someone who you assume would make a complaint because of your description (or because you assume they would not agree with your description).
She actually testified that her site would "express Ms. Smith’s and 303 Creative’s message celebrating and promoting” her view of marriage." There is nothing that prohibits her from indicating in her promotion of service that her site has a religious message. No one that sells a creatively designed rosary is going to get hit with a discrimination suit. The problem would arise only if the creator refused to sell to a Jew because she believed only Catholics were entitled to have a rosary.
There are 104 products on Amazon today that contain the message "God Bless Our Home." I'll bet not one of the vendors has faced a complaint, much less an administrative proceeding, because a non-Christian claims that message discriminates against Allah or Thor or Krishna.
Given that testimony, quoted by the extremes, the 10th Circuit's "credible risk" should have been reduced to unlikely, and hence no standing. Indeed, it was the speculation of what would be said on the website,-- since she never actually created it, and no one knows whether her description of her services would indicate a religious description of the content--that is the basic speculation preventing standing.
I'm amazed no one asked what her response to Stewart and Mike, real or fake, was.
The lawsuit had two issues: could she decline to make websites for gay marriages, and could she state that intent on her website. Both of those would violate the CO law. (We know what her website would say, and the parties stipulated to what the statement was - the website was built, she just hadn't made it open to the public yet).
Could she say on her website "gays need not apply" no, that would violate the law. Saying "all my designs will express my Christian view of marriage" I don't see how. How does that differ from "all my jewelry is designed to express my Christian belief?" (or for that matter, Hindu belief) .
If Colorado laws prevent people from designing jewelry with Christian themes, perhaps that part should have been struck down. But not the active discrimination part, the "refuse to serve gays" type.
And in addition to the falsehood and lack of “injury” in the homophobic website creator case (who doesn’t even have a business yet), please share thoughts on the lack of standing or injury by the plaintiffs in the student debt case. Is there a way to bring a similar “lack of standing” case that would restore civil rights and get it all the way to SCOTUS, now that there are two cases where precedent says you don’t need injury or standing to bring a case? Of course this SCOTUS would never restore civil rights so I guess the only practical solution is expand the court. They’re so obviously corrupt and have now made two unconstitutional rulings in addition to shattering precedent, surely Biden has standing to “rebalance” the court?
I looked at the injury the court said the State of Missouri suffered to give it standing. There is a corporation that administers federal student loans there and gets paid a fee for doing so. The court said that this corp was an "instrumentality" of the state and the loss of fees was the injury. That connection is not actually clear. But..
Thing is, when a debt paid off, there is no more loan to administer and thus no reason to keep getting fees. So if the loans are forgiven (which is another way of saying the government either pays them or declares them over/reduced) there IS a loss of fee income because THERE IS NO MORE WORK NEEDED TO EARN THEM. This comes under the heading of "Duh" but apparently lack of the CHANCE for an "instrumentality" to earn fees is an injury--which sure sounds like a speculative injury to me. Why exactly Missouri or its surrogate thinks it has a right to earn those fees isn't addressed. (I've heard the corporation itself wanted nothing to do with the case as it was better off with loans forgiven. )
Chris, first, I love your newsletter! I think you need to look a little deeper into the ideological split of this court. It's not really 6-3. It's more 3-3-3. A combination of Roberts-Kavanaugh-Barrett often vote with the liberal block.
“Textualism” - we are going to go by the plain meaning of the words. Except for when we don’t want to, such as when the statute expressly authorizes waiving student loan obligations during a national emergency and we don’t the government to do that.
“Originalism” - we are going to interpret the text in light of the applicable historical context. Except for when we don’t want to, such as deciding whether the 14th Amendment was meant to prohibit government action to assist African Americans, or that the Second Amendment was intended to confer an individual right to own handguns.
“Non-Activism” - we are only going to address live disputes and resolve them in the more narrow course available and not set policy. Except for when we don’t want to, such as deciding a case on a religious right to refuse a service to gay people before any actual service was denied.
Thank you, Chris!
Yes, thank you Chris. Have a nice weekend and safe 4th of
July.
Congrats on a SCOTUS session in the books, Chris. Your writing and analysis helps this old non-JD understand where this radical, illegitimate Court is taking our country we all love so much. Have a safe and happy Fourth; see you next week around the substack, as the kids today say
(do they? I don't know.)
Thank you very much for Law Dork and have a nice relaxing JULy!
Thank you for your thoughtful, nuanced coverage.
Take some good self-care time. And you’re your own boss now! :)
You picked a doozy of a term to start this blog. And, if the decision to grant cert on the domestic violence firearm issue is indicative, you have another wild coming from the crazy six! Get rested.
I’m so glad that I found this Substack--it’s rapidly become my favourite.
As for the Supreme Court, well, it did its job as the judicial arm of the Republican Party. That’s really all I can say.
Thank you!
Thank you!
Thanks for all of this! Hope you have a great weekend. What you were saying about the majority balancing really hit a chord with me.
We must somehow make them all acknowledge that this is a *political* exercise of power, and that they have strayed outside their legitimate scope.
When breathing is once again possible, I'd love to hear your analysis of the standing "non-issue" in the Creative 303 case. There is some indication that it was achieved by a false filing by plaintiffs. Do you think this might be true?
https://newrepublic.com/article/173987/mysterious-case-fake-gay-marriage-website-real-straight-man-supreme-court
Yeah, I'm off to not do something that I can hopefully turn into a lawsuit since apparently that's how we roll now.
Outrageous isn’t it 😒
It is true, and taking a hypothetical case is directly against the constitution. https://law.justia.com/constitution/us/article-3/21-the-requirement-of-a-real-interest.html
Standing based on a credible fear of enforcement is a longstanding doctrine and quite common. That's all that happened here
None of the three courts that looked at this case considered that fake message relevant to standing.
But was the fear of enforcement credible? There is a big difference between
a) describing the nature of your product and letting the prospective client choose whether or not to buy it and
b) refusing to sell to someone who you assume would make a complaint because of your description (or because you assume they would not agree with your description).
She actually testified that her site would "express Ms. Smith’s and 303 Creative’s message celebrating and promoting” her view of marriage." There is nothing that prohibits her from indicating in her promotion of service that her site has a religious message. No one that sells a creatively designed rosary is going to get hit with a discrimination suit. The problem would arise only if the creator refused to sell to a Jew because she believed only Catholics were entitled to have a rosary.
There are 104 products on Amazon today that contain the message "God Bless Our Home." I'll bet not one of the vendors has faced a complaint, much less an administrative proceeding, because a non-Christian claims that message discriminates against Allah or Thor or Krishna.
Given that testimony, quoted by the extremes, the 10th Circuit's "credible risk" should have been reduced to unlikely, and hence no standing. Indeed, it was the speculation of what would be said on the website,-- since she never actually created it, and no one knows whether her description of her services would indicate a religious description of the content--that is the basic speculation preventing standing.
I'm amazed no one asked what her response to Stewart and Mike, real or fake, was.
The lawsuit had two issues: could she decline to make websites for gay marriages, and could she state that intent on her website. Both of those would violate the CO law. (We know what her website would say, and the parties stipulated to what the statement was - the website was built, she just hadn't made it open to the public yet).
Could she say on her website "gays need not apply" no, that would violate the law. Saying "all my designs will express my Christian view of marriage" I don't see how. How does that differ from "all my jewelry is designed to express my Christian belief?" (or for that matter, Hindu belief) .
If Colorado laws prevent people from designing jewelry with Christian themes, perhaps that part should have been struck down. But not the active discrimination part, the "refuse to serve gays" type.
And in addition to the falsehood and lack of “injury” in the homophobic website creator case (who doesn’t even have a business yet), please share thoughts on the lack of standing or injury by the plaintiffs in the student debt case. Is there a way to bring a similar “lack of standing” case that would restore civil rights and get it all the way to SCOTUS, now that there are two cases where precedent says you don’t need injury or standing to bring a case? Of course this SCOTUS would never restore civil rights so I guess the only practical solution is expand the court. They’re so obviously corrupt and have now made two unconstitutional rulings in addition to shattering precedent, surely Biden has standing to “rebalance” the court?
I looked at the injury the court said the State of Missouri suffered to give it standing. There is a corporation that administers federal student loans there and gets paid a fee for doing so. The court said that this corp was an "instrumentality" of the state and the loss of fees was the injury. That connection is not actually clear. But..
Thing is, when a debt paid off, there is no more loan to administer and thus no reason to keep getting fees. So if the loans are forgiven (which is another way of saying the government either pays them or declares them over/reduced) there IS a loss of fee income because THERE IS NO MORE WORK NEEDED TO EARN THEM. This comes under the heading of "Duh" but apparently lack of the CHANCE for an "instrumentality" to earn fees is an injury--which sure sounds like a speculative injury to me. Why exactly Missouri or its surrogate thinks it has a right to earn those fees isn't addressed. (I've heard the corporation itself wanted nothing to do with the case as it was better off with loans forgiven. )
Chris, first, I love your newsletter! I think you need to look a little deeper into the ideological split of this court. It's not really 6-3. It's more 3-3-3. A combination of Roberts-Kavanaugh-Barrett often vote with the liberal block.
Nice work, Seth, and good writing to boot. Gracias.
Chris, but thanks. 🤣
Modern conservative jurisprudence:
“Textualism” - we are going to go by the plain meaning of the words. Except for when we don’t want to, such as when the statute expressly authorizes waiving student loan obligations during a national emergency and we don’t the government to do that.
“Originalism” - we are going to interpret the text in light of the applicable historical context. Except for when we don’t want to, such as deciding whether the 14th Amendment was meant to prohibit government action to assist African Americans, or that the Second Amendment was intended to confer an individual right to own handguns.
“Non-Activism” - we are only going to address live disputes and resolve them in the more narrow course available and not set policy. Except for when we don’t want to, such as deciding a case on a religious right to refuse a service to gay people before any actual service was denied.