Limiting the power of the executive branch and the 'administrative state' is something we might welcome when the Trump regime takes power. Except, of course, that: 1) the court will do a 180 when the president is a Republican, and 2) the incoming Trump regime has no intent to obey court rulings it does not agree with.
It seems to me that the ability of government agencies to punish wrongdoers, especially corporate ones, also serves in one sense to protect the wrongdoers themselves. As long as there is a legal mechanism for punishing them, the public won’t be tempted to take the law into their own hands. Next time the big financial houses bring on a Great Recession, instead of now-disempowered regulatory agencies going after them, maybe the ordinary folks whose lives and businesses have been ruined will go into JP Morgan and Goldman Sacks with pitchforks and nooses.
J. Barrett seemingly is becoming more and more sensible in her opinions...that is, except when it refers to abortion restrictions. But even here, whenever the lower courts get done either upholding the primacy of EMTALA vs state law, or ruling in favor of Idaho, the case will again will move up to SCOTUS, and I venture to say that Barrett will NOT side with the Idaho position, but narrowly decide for EMTALA on a substantive "women's health at risk" position, deferring to ER physicians' expertise.
The conventional wisdom would be that she won't, due primarily to her personal religious background. However, it's worth noting she's not old enough to remember a time when abortion wasn't legal. And she bears at least some responsibility for what's happening now (I guess Roberts' opinion would have been the law if she hadn't joined the other four on Dobbs). We'll see if the experience of the past two years has had any effect, and whether she's open-minded on this issue or not.
With every ruling SCOTUS is giving themselves more power- they are becoming more illegitimate - there is no reason that democracy loving people should even recognize them, let alone Executive brach.
This is a takeover of the United States, directed by the hard right.
So, if the FDA finds that a manufacturer is adulterating say, baby formula, does it have to sue and try to get an injunction just to stop it happening? If it has the power to say "stop" what means does it have to enforce that order?
One of the things the Chief doesn't get enough credit for, in my opinion, is his flexibility.
When he took over for Chief Justice Rehnquist, he inherited strict adherence to the buzzer. He quickly showed that wasn't his style, and he has been more generous with jurists.
Then he implemented a 2-minute introductory period for advocates, to try and stem the tide from an overheated bench.
Then the sea change: COVID happened, and he deftly switched to a totally different method. When it was time to return to normal, the Chief re-architected the argument structure in a radical way. That new structure included a very jarring departure from tradition that generally allowed Justice Thomas to actively participate not just in the new seriatim round, but also in the open questioning. This is what the Members wanted; all nine justices participating. I've read a lot of trite commentary about this change, and I think it's all off-base. (And to be clear, my politics align with yours, Chris.)
Recently, the Chief has been willing to afford the Court more time to release opinions, as will happen next week. I think this is a significant improvement. Why? Because every year many of the last opinions are weaksauce. Many of them (mostly the ones from the March and April sittings) are rushed. They're decidedly second tier rhetoric. I'm optimistic a few extra days will allow them to be slightly better and worthy of the Court.
Point taken, but, in its way, that's just a greater point against the current court. They are hearing so many fewer cases; there is no excuse for not being able to finish in a similar timeframe — and that similar timeframe gives them, in reality, more time because they have fewer decisions.
I take your point, also. There is no known explanation for why the Court is suddenly not releasing opinions for months into a Term. It seems related to the Dobbs leak. But my brain is failing to make sense of it. I miss Justice Ginsburg's November opinions.
That said, the extra time this Term seems to have helped the final day's opinions. Justice Barrett's majority opinion in Corner Post, Justice Kagan's controlling opinion in NetChoice, and the Chief's immunity opinion are all marvelously crisp and clear prose. (You just have to ignore what they're saying in order to appreciate how they're saying it. And yes, it may be just a coincidence because the Monday authors happen to be, imho, the Court's three best writers.)
We can now complete a third leg of the stool—history, tradition and analogy.
In law school, my write on was a deep dive into whether California’s unfair competition law, which permitted courts to impose steep (some said in terrorem) fines without a jury trial. Much of it was looking at common law precedent. Whoo-hah. Even if the Court were to declare Blackstone the black letter authority on “the” common law, there are many examples of fines and other amercements that the Crown imposed upon errant subjects outside the Court of Kings Bench and the Court of Common Pleas. In its hundreds of years before codification got underway in earnest in the 19th Century, there are no end to non-jury occasions to impose fines and forfeitures with which to find analogies. Latin and law French coming to a brief near you.
As usual I enjoy reading your analysis of Supreme Court decisions. However you blew it when you referred to Justice Sotomayor’s dissent as “strident.” The word strident is old code for the woman is being out of line. You wouldn’t say a man is strident and you ought not to use that word for a woman’s voice, especially a Supreme Court justice making an important point.
I would use it for a man and meant it as a positive — but I appreciate and will take into consideration your language note. [For what it's worth, the only other two times I can find it being used in my newsletter were by women, once by Abha Khanna in a Q&A I did with her referring to lawmakers (so, referring to both men and women), and the other time by Justice Barrett in the Trump 14th Amendment case (presumably referring to the statement by Justices Sotomayor, Kagan, and Jackson, though it is not explicit).]
Limiting the power of the executive branch and the 'administrative state' is something we might welcome when the Trump regime takes power. Except, of course, that: 1) the court will do a 180 when the president is a Republican, and 2) the incoming Trump regime has no intent to obey court rulings it does not agree with.
It seems to me that the ability of government agencies to punish wrongdoers, especially corporate ones, also serves in one sense to protect the wrongdoers themselves. As long as there is a legal mechanism for punishing them, the public won’t be tempted to take the law into their own hands. Next time the big financial houses bring on a Great Recession, instead of now-disempowered regulatory agencies going after them, maybe the ordinary folks whose lives and businesses have been ruined will go into JP Morgan and Goldman Sacks with pitchforks and nooses.
J. Barrett seemingly is becoming more and more sensible in her opinions...that is, except when it refers to abortion restrictions. But even here, whenever the lower courts get done either upholding the primacy of EMTALA vs state law, or ruling in favor of Idaho, the case will again will move up to SCOTUS, and I venture to say that Barrett will NOT side with the Idaho position, but narrowly decide for EMTALA on a substantive "women's health at risk" position, deferring to ER physicians' expertise.
We shall see.
The conventional wisdom would be that she won't, due primarily to her personal religious background. However, it's worth noting she's not old enough to remember a time when abortion wasn't legal. And she bears at least some responsibility for what's happening now (I guess Roberts' opinion would have been the law if she hadn't joined the other four on Dobbs). We'll see if the experience of the past two years has had any effect, and whether she's open-minded on this issue or not.
With every ruling SCOTUS is giving themselves more power- they are becoming more illegitimate - there is no reason that democracy loving people should even recognize them, let alone Executive brach.
This is a takeover of the United States, directed by the hard right.
So, if the FDA finds that a manufacturer is adulterating say, baby formula, does it have to sue and try to get an injunction just to stop it happening? If it has the power to say "stop" what means does it have to enforce that order?
One of the things the Chief doesn't get enough credit for, in my opinion, is his flexibility.
When he took over for Chief Justice Rehnquist, he inherited strict adherence to the buzzer. He quickly showed that wasn't his style, and he has been more generous with jurists.
Then he implemented a 2-minute introductory period for advocates, to try and stem the tide from an overheated bench.
Then the sea change: COVID happened, and he deftly switched to a totally different method. When it was time to return to normal, the Chief re-architected the argument structure in a radical way. That new structure included a very jarring departure from tradition that generally allowed Justice Thomas to actively participate not just in the new seriatim round, but also in the open questioning. This is what the Members wanted; all nine justices participating. I've read a lot of trite commentary about this change, and I think it's all off-base. (And to be clear, my politics align with yours, Chris.)
Recently, the Chief has been willing to afford the Court more time to release opinions, as will happen next week. I think this is a significant improvement. Why? Because every year many of the last opinions are weaksauce. Many of them (mostly the ones from the March and April sittings) are rushed. They're decidedly second tier rhetoric. I'm optimistic a few extra days will allow them to be slightly better and worthy of the Court.
Point taken, but, in its way, that's just a greater point against the current court. They are hearing so many fewer cases; there is no excuse for not being able to finish in a similar timeframe — and that similar timeframe gives them, in reality, more time because they have fewer decisions.
I take your point, also. There is no known explanation for why the Court is suddenly not releasing opinions for months into a Term. It seems related to the Dobbs leak. But my brain is failing to make sense of it. I miss Justice Ginsburg's November opinions.
That said, the extra time this Term seems to have helped the final day's opinions. Justice Barrett's majority opinion in Corner Post, Justice Kagan's controlling opinion in NetChoice, and the Chief's immunity opinion are all marvelously crisp and clear prose. (You just have to ignore what they're saying in order to appreciate how they're saying it. And yes, it may be just a coincidence because the Monday authors happen to be, imho, the Court's three best writers.)
We can now complete a third leg of the stool—history, tradition and analogy.
In law school, my write on was a deep dive into whether California’s unfair competition law, which permitted courts to impose steep (some said in terrorem) fines without a jury trial. Much of it was looking at common law precedent. Whoo-hah. Even if the Court were to declare Blackstone the black letter authority on “the” common law, there are many examples of fines and other amercements that the Crown imposed upon errant subjects outside the Court of Kings Bench and the Court of Common Pleas. In its hundreds of years before codification got underway in earnest in the 19th Century, there are no end to non-jury occasions to impose fines and forfeitures with which to find analogies. Latin and law French coming to a brief near you.
As usual I enjoy reading your analysis of Supreme Court decisions. However you blew it when you referred to Justice Sotomayor’s dissent as “strident.” The word strident is old code for the woman is being out of line. You wouldn’t say a man is strident and you ought not to use that word for a woman’s voice, especially a Supreme Court justice making an important point.
I would use it for a man and meant it as a positive — but I appreciate and will take into consideration your language note. [For what it's worth, the only other two times I can find it being used in my newsletter were by women, once by Abha Khanna in a Q&A I did with her referring to lawmakers (so, referring to both men and women), and the other time by Justice Barrett in the Trump 14th Amendment case (presumably referring to the statement by Justices Sotomayor, Kagan, and Jackson, though it is not explicit).]