SCOTUS has held that the termination of the DACA program was arbitrary and capricious:
#SCOTUS rules against Trump administration in challenge to decision to end #DACA program, which allowed noncitizens brought to this country illegally as children to apply for protection from deportation, holding decision was arbitrary and capricious
— SCOTUSblog (@SCOTUSblog) June 18, 2020
I AM NOT A LAWYER.
I have spent enough time in health policy to have some awareness of the power of the Administrative Procedure Act (APA). The APA regulates the decision-making process for executive action in the US federal government. A big part of the APA is notice and comment where a new rule is proposed in draft form, interested stakeholders respond and then the government responds to all of the substantive points raised in comments. The government does not need to change policy in the response, they just have to show that they engaged in contemplating trade-offs and issues that the comments brought up. Most of my risk adjustment comments to the ACA regulatory rules are dealt with “We thank the commentators for XYZ, we disagree and won’t follow your advice” OR “We would like to do what you want us to do but we can’t do that for operational reasons as our computers were programmed in 1978…”
A rule struck down by APA arbitrary and capriciousness is not a ruling on the constitutionality or legality of the contents of the particular rule. It is merely a ruling on the process. Rescinding DACA is a legal option as long as the Trump administration follows the APA check list and goes through notice and comment with appropriate engagement and weighing of all relevant points. The SCOTUS ruling is a respite with the actual finality coming this November. A Biden administration will withdraw the rule. A second Trump administration would presumably be able to issue the rule with the appropriate boxes checked off in a facially plausible manner.
Baud
It’s a punt, but it gets us to the election and the inauguration.
Krope, the Formerly Dope
APA standards notwithstanding, this is true of nearly everything Trump does.
Cermet
So likely Robert’s joined the liberal wing so as to stick it to the orange cloud of gas; knowing full well this ruling is only temporary but he can thumb his nose at the rump without really compromising the power of the prsident’s office.
rikyrah
what was the vote?
Baud
@rikyrah: 5-4.
Baud
I wonder if they’ll overturn Roe in the abortion case. I find it hard to believe that the streak will continue.
Baud
Where is Schrodinger’s Cat? This case has been weighing on her mind.
Elizabelle
Roberts wants to protect the integrity of the Court. A bit late to see the danger, but …
The 18th century called. It wants Scalito back.
Benw
@rikyrah: Roberts joining the 4 liberals.
Steve Miller’s probably sobbing into a sock in a WH bathroom
Aleta
@Baud: Not at all optimistic about Roe. Very relieved for today.
Omnes Omnibus
Just an observation, the Court usually decides cases on the narrowest possible grounds. Deciding on procedural grounds is a favorite method.
Immanentize
@Baud:
Overturning Roe would cause much more disruption in the nation than overturning DACA.
My guess is a splintered decision 4-2-3? Allowing states to mandate hospital privileges, but requiring valid non-barrier steps to doing so. But we shall see.
PsiFighter37
@Baud: I get the strong sense from Roberts that he has little to no interest in rocking the boat on hot-button social issues, and that he would very much prefer to focus on handing corporations wins instead.
Baud
@Immanentize:
@PsiFighter37:
Right. I would still bet on a narrow loss there. I also expect that the court will punt on the Trump document cases to try to get the issue past the election as well.
Baud
@Omnes Omnibus: Usually, but not always. Citizens United was much broader than it needed to be.
p.a.
@Baud: before the election? Assuming nat’l polls are accurate 60/40 ish pro-choice I think punt. Another thumb in the eye of biblethumpers (at the risk of them sitting out the election), but there are myriad issues to stoke their hate and get out the fascist vote, and wait for any number of lawsuits to reach the SCOTUS after Nov 2020.
ETA: I see your 10:40. Yep.
Josie
So once again, it seems that we are saved by the incompetence of these evil people. Hopefully they will not be able to get it done legally before the election. Yay for their stupidity, I guess.
JPL
@Immanentize: If the current president wanted to issue an executive order repealing DACA, wouldn’t that be legal?
Nora
It used to be that the Supreme Court would rule on cases in the narrowest possible way, avoiding Constitutional issues whenever possible. This court has not been really good at that (what exactly was the standing of the plaintiffs in the ACA cases?), but it’s good to see they still know how to decide cases that way.
Frankensteinbeck
@Baud:
There’s no guessing how Roberts will rule. He’s going to be damned reluctant to overturn major settled law that doesn’t touch on any of his personal pet issues, but he’s an asshole who leans right by preference and certainly has no empathy for women whatsoever.
Baud
@Nora: Which ACA case are you talking about?
PsiFighter37
@Josie: Even if they finished it, there is no doubt they would be sued again. So in all practicality, the election will decide if Dreamers stay or get deported.
Baud
@PsiFighter37:
And just this morning I came across some “voting doesn’t matter” buffoons on the internet. (No idea if they were sincere people or bots or trolls).
Baud
@Frankensteinbeck: Right. I can’t see anything that would kill off the GOP’s evangelical support faster than if Roe is upheld again, even in a weakened case. Although it may not be the case currently before the court. I think they’ll want to do it after the election.
Omnes Omnibus
@Baud: I said usually, you bitch.
Baud
@Omnes Omnibus: And I said not always, asshole.
Omnes Omnibus
@JPL: Executive orders are meant to fill spaces where Congress has not acted or to provide guidance on how an administration will interpret and enforce a law that is on the books. An executive order cannot repeal a law.
Delk
Stephen Miller is going to be upset when he climbs out of his coffin at sundown.
Omnes Omnibus
@Baud: If you continue you to be this way, I shall pout.
Frankensteinbeck
@Omnes Omnibus:
Yeah, but my understanding is DACA is not a law, just a long-standing policy. An EO can repeal that.
geg6
Regardless of any upcoming issues, I’m shocked and pleased.
Miss Bianca
@Delk: Damn, I wish Buffy would show up and just stake the sumbitch. Put us all out of our misery.
WaterGirl
@Baud: @Omnes Omnibus:
I’m gonna have to check the BJ commenting policy, but I’m hoping it will say that my two favorite attorneys on BJ are not allowed to squabble. :-)
Betty Cracker
Justice Sotomayor states the obvious for the record:
Thank you, Justice Sotomayor.
Quaker in a Basement
@Baud: If the final ruling comes in November, it gets us to the election, but NOT the inauguration.
Baud
@Omnes Omnibus: If you pout, I’ll flounce.
Believe me, Mr. Omnibus, you do not want to see me flounce.
Immanentize
@Elizabelle: I really don’t like the term “Scalito.”. It really mixes up two so very different justices. I disagreed with Scalia on most things, agreed in a few, fought him constantly. He was arrogant, shouty and harsh. But he generally had a grounding for his opinions. Alito is just a reactionary Trumper who is really a low quality hire (as Kay would say). Did you ever see his comments on election day 2016? The two don’t resemble each other at all.
And “Scalito” is also vaguely anti-immigrant. But certainly better than just saying, “the Wops,” I suppose.
Baud
@Quaker in a Basement: What final ruling in November?
Omnes Omnibus
@Frankensteinbeck: My bad, you are correct. But then, that’s the point of this decision. There are ways to do things and the Trump fuckers never bothered to learn them.
Another Scott
A good result, even if it’s temporary.
Relatedly,…
(Context – https://twitter.com/Haudricourt/status/1273392935007064065 )
Following the rules is important!!
Cheers,
Scott.
Omnes Omnibus
@Baud: I would probably be willing to pay money not to see it.
Baud
@Another Scott: Weird first rule, since there are more than 9 players on a team.
Baud
@Omnes Omnibus: How much money?
Another Scott
@Baud: I guess it depends on how one defines “players”…
Hehe.
Cheers,
Scott.
(“Who generally dislikes the DH, but Ortiz was amazing in his prime.”)
JPL
@Omnes Omnibus: DACA is not a law.. It was an executive order
Omnes Omnibus
@Baud: I have rethought my position. Flounce away.
Omnes Omnibus
@JPL: See me @ 39.
JPL
@Omnes Omnibus: Thanks. I wonder if his rabid followers will figure that out.
raven
@JPL: sheeeeeet.
Immanentize
Executive orders, like the DACA order, create certain due process rights and protections for those covered by the order/law. You cannot remove those rights/protections without applying due process (meaning government can “do” whatever it wants, but that appropriate “process” must be followed!)
(Replying to JPL above)
Yutsano
@Another Scott: Edgar Martinez got into the Hall of Fame as a designated hitter. You’re not taking this one away from us that easily.
Enhanced Voting Techniques
The mandate of the conservatives in SCOTUS is to protect Corporate Citizenship, the last thing they are going to do is risk that by overturning something as popular as Row and give a President Biden a mandate to pack the court with liberal justices.
Barbara
@Immanentize: I think Scalia changed and became a lot more like Alito, with his “logic” becoming not much more than reactionary screeds. Whether it was age or something else, his earlier decisions are much more reasoned, if not generally persuasive to me, than his later decisions. One defect he always had was the idea that his logic was obvious and evident to those reading his opinions. He often truncated explanations or holdings as if the thing spoke for itself. Agree that “Scalito” is uncalled for.
Betty Cracker
Trump is taking it well:
Immanentize
Trump (or more clearly his people) today on DACA–
Sadly only figuratively…
I wonder why the second amend is in the tweet?
ETA. AND Betty beat me by thiiiis much.?
Betty Cracker
Gotta admit, I enjoyed that imagery! Keep ’em coming, Trump ghost-tweeter!
Le Comte de Monte Cristo, fka Edmund Dantes
@Enhanced Voting Techniques:
Simpler than that – Roberts likes being CJ of a narrowly divided court. He doesn’t want to be CJ in a perpetually losing coalition of a court with about 10 extra justices.
Twitler’s rage tweets are off the charts. He’s practically frothing at the mouth and chewing on the Oval Office rug.
Baud
@Betty Cracker:
You know, it really is that simple for us as well.
Brachiator
This apparently did not bother the justices in the minority.
Dorothy A. Winsor
I think the new Joe Biden ad is pretty good. It’s very on brand for him.
Mallard Filmore
@Frankensteinbeck:
My non-lawyerly understanding is:
Obama deported as many undocumented as the funding from Congress allowed. Since that was not enough money to get everybody, he decided that DACA types would go last.
patrick II
@Immanentize:
different-church-lady
@Baud: The “sincere” ones have a consumerist view of voting: “I paid for something with my vote and then I didn’t get it!” Not how it works, beard-bro.
Gravenstone
@Betty Cracker: Someone seems to have Dick Cheney on the brain. Wonder why that might be?
different-church-lady
@Betty Cracker: I didn’t realize the Supreme Court could revoke bits of the Constitution. Learn something new every day…
Immanentize
@Barbara: I agree he was getting angrier — in some ways, but he was always off the charts when writing dissents. We used his dissents to argue what the majority really meant because he was always so hyperbolic about outcomes of cases he lost.
We were most proud of his dissent in which he declared that the Court had opened “a new front in the guerilla war” against the death penalty.
JPL
@Dorothy A. Winsor: Yes it is!
Baud
@different-church-lady: Yes, I agree. It’s an poor and harmful attitude that comes from libertarian dogma, I believe.
scav
So is it now conservative doctrine that the Supreme Court has nothing whatsoever to do with the establishment of what is legal or constitutional, being outranked by any random cop with an itchy knee and the whims of a supreme tweeter?
Another Scott
@Mallard Filmore: +1
He followed the rules and the law. What a concept!!
Cheers,
Scott.
kindness
Stephen Miller, the Nazi that he is, has added the members of the Supreme Court that keep thwarting his racist fever dreams to his ‘list’.
catclub
ummm “4 Liberals” in scare quotes, please. 4 moderates is much closer
to the case.
Delk
I hope Lincoln Project puts out something new today. Hit him while he’s down.
different-church-lady
@kindness: And speaking of Nazis, the Trump campaign apparently believes there are now enough of them in America to put him over the top, even if everyone else recoils in disgust.
Immanentize
@patrick II:
The first quote is from an oral argument. It is a classic reducto ad absurdum question and was competently answered.
The second was from a panel discussion where he did not start the Jack Bauer analogy (a Canadian, I think, did) but he was willing to engage it. IIRC, Scalia’s point was that if someone (like Jack Bauer) saved the entire city of Los Angeles by torturing one person, should that person be criminally prosecuted? My answer is yes. (I wonder what Spock would decide?) But the whole exchange was not crazy like your snippet makes it out to be.
Benw
If shotgun blasting Republicans in the face is wrong, I don’t want the Supreme Court to be right!
Barbara
@Mallard Filmore: Not quite right. Obama did decide that, but DACA is also an affirmative program that extended protections to people who met its specific criteria, e.g., brought here as children.
ETA: Don’t get me wrong. I hope DACA survives and deciding not to decide is probably the best thing we could have hoped for under the circumstances.
Suzanne
There’s a like-your-mom joke in there.
Nothing can ruin my good mood about this today.
patrick II
@different-church-lady:
So, you missed the VRA decision.
Aleta
@Gravenstone: good retort
Betty Cracker
@Dorothy A. Winsor: That is a good one. Glad he pointed out that he wouldn’t just be the president of the people who voted for him. Trump’s refusal to even pretend to care about Americans outside his base is unprecedented, as far as I know.
patrick II
@Immanentize:
The Jack Bauer quote is more arguable. The broccoli quote not so much. As you say, a reductio ad absurdom argument is meant to show how absurd an argument is if carried to the extreme, and would be used to argue against a position that Scalia voted for. And, although the argument should be trivial, as most any FOX news legal argument should and was pretty much the core idea of their objection — if the government could make everyone buy life insurance, you can make everyone buy broccoli. He was showing, disingenuously, how extreme the government’s position was because if they could force you to buy one thing, the could force you to buy another. He was seriously holding them as equivalent.
Barbara
@Immanentize: It’s quite stark, how frequently Trump manages to wrong foot himself even when it comes to programs, like DACA, that really do have some legal vulnerabilities. However, I am surprised by the ruling because the Court has heretofore let him get away with pretty much just about everything in the area of immigration. Apparently the Court or at least Roberts is absorbing and comprehending the extent of Trump’s lawlessness.
Elizabelle
@Immanentize: Oh. I will stop with Scalito, then. I think its intent was “the second coming of Scalia.” It is not a term of endearment, to be sure.
But we agree: Alito is a very poor quality hire. Thanks, W. (For others: Alito was second choice in 2005, after Harriet Miers. And he replaced Sandra Day O’Connor.)
From wiki:
Uh huh. He was nominated to the US Court of Appeals (Third Circuit: Delaware, NJ, and PA) by GHW Bush in 1990.
patrick II
I am wondering if this decision doesn’t help Trump. He is putting out angry tweets about them and riling up his base. Roberts — Bush’s man — betrayed us. Give me another term and I’ll be able to replace Ginsberg at least and perhaps more from the liberal four and keep those “foreigners” out.
You can bet that’s what he’ll be campaigning on.
Brachiator
Very OT
This has got to be a very big deal in the UK and for quite a few other people.
hitchhiker
Let’s see … so far this week gay people have won, trans people have won, and dreamers have won, all courtesy of SCOTUS. The hold-your-nose-and-vote-for-trump-because-judges rationale just took a hit.
Turns out, trumpers, that it doesn’t matter if your guy is a “fighter,” he also has to be competent. Thrashing and trashing are just not going to cut it. I hope they’re all demoralized enough to stay home next fall.
I’m never going to be able to forgive the white, educated women who marked the box beside trump’s name. Never.
Baud
@patrick II: It helps Trump because the opposite decision would have riled up our side, but at too high a cost.
Immanentize
@Barbara: I agree completely about how crazy and incompetent he is (and his close advisors are). But I also think that maybe — at least in Robert’s mind — on the merits keeping people out is different than kicking those already in, out. It’s like an involuntary act question in criminal law. When is your presence in the country “blameless.”
randy khan
So, combine this with the loss in the census case last year. Both essentially were decided based on the same thing – the Administration was so sloppy as to not provide a decent enough reason to allow the Justices to hold their noses. I work in an area that’s governed by administrative law at its basic level, so believe me when I say that having the Administration lose two cases for basically the same reason in two years is shocking.
First, it’s pretty unusual these days for the government to lose a case based on not providing a decent reason for its decision, as the standard for “decent” is quite low. Second, when the government loses, it almost never appeals, but instead goes back and fixes the problem. Third, the Supreme Court really doesn’t take a lot of this kind of case because there’s no real nuance left to explore in this area. So even having two cases in two years is strange, but losing both of them speaks to a level of disdain for the rules plus a level of incompetence that is way outside recent experience.
Or, you know, another day in the Trump Administration.
Suzanne
@hitchhiker:
And the lunatics who comment at Dreher’s blog are sooooo demoralized. Many of them are now saying that they won’t vote at all.
I know I said I was going to stop reading it. But then I needed to swim around in wingnut tears.
Steeplejack
@Brachiator:
Vera Lynn is well fit.
patrick II
@Baud:
I’m certainly not saying I wish it had gone the other way to help us and hurt Trump. As you say, the cost is way too high. I am just observing the political results. I wonder if Roberts has.
Baud
@Suzanne: I’ll believe it when I see it, but it’s nice to see it on the other side for once.
Immanentize
@Suzanne: Bathing in salt water is excellent for one’s complexion.
robmassing
Hot take: Roberts thinks Trump is going to lose
Villago Delenda Est
@Elizabelle: A bit too late for that. Alito, Thomas, and Boof are all destructive agents to the integrity of the court.
Ken
@Enhanced Voting Techniques: I keep waiting for the social conservatives to notice that the court’s had a conservative majority for years (decades) now, yet somehow Roe v. Wade is still in place.
HumboldtBlue
WATCH: DACA supporters chant “Home is here!” on the steps of the US Supreme Court on Tuesday after justices hear arguments on Trump admin.’s push to end the federal program.
Immanentize
@Steeplejack: I posted this up in the morning thread:
Robyn Hitchcock — The Yip Song (acoustic)
Kay
@robmassing:
I agree. I hope the momentum keeps rolling. As more and more of them think he’s going to lose, they’ll peel off, which creates more loserism :)
Ken
That has always been conservative doctrine when they didn’t like the decisions.
dirge
I find myself wondering if this might be a bigger deal than it appears. My takeaway is “the rational basis test has real teeth,” which may be new precedent, simply because no prior administration has failed to clear that very low bar. If so, this may be a template for future decisions, which may be a good thing. On the downside, Roberts may be setting out the tools for micromanaging a Biden administration.
Goku (aka Amerikan Baka)
@Enhanced Voting Techniques:
While I hope you’re right, couldn’t Biden just pack the Court anyway?
Honestly, I’m sceptical that Biden will even do such a thing. I think it needs to be done, but Biden doesn’t seem the type to do something that radical
Baud
@dirge:
Yep. Corporate litigators are enjoying this decision.
Baud
@Goku (aka Amerikan Baka): I don’t think Biden would go there, but Congress would have to pass a law before any court packing could occur.
Just Chuck
@Another Scott: I think the objection to the DH rule was that there was an unwritten rule of “everybody bats”. “Unwritten” was the problem part.
Eh, ain’t my dog in this fight, dog knows I don’t give a toss about players paid millions who aren’t even from my town.
Villago Delenda Est
@Ken: Not doctrine. Rigid ideological dogma.
Gravenstone
@Aleta: More of an observation. Makes me wonder if ol’ Dick has been in contact with the Trump team to offer his pearls of “wisdom” in their time of trouble?
Immanentize
@Gravenstone: hmmm. Not if Mini-Dick Cheney is any indication of the family opinion. She is pretty obviously a never-Trumper. And Bolton was Cheney’s useful idiot. I don’t see Cheney as any type of Kissinger.
Le Comte de Monte Cristo, fka Edmund Dantes
Bad shit getting ready to go down in Louisville. Courthouse and the Metro Givt complex getting reboarded on orders, MRAPs are here.
HumboldtBlue
OK lawyers and parliamentarians, I see all the words about expanding the federal judiciary, just how will that be accomplished? Simple bill from congress? Eating babies with cilantro and lemons? Any insight would be welcome.
Barbara
@Le Comte de Monte Cristo, fka Edmund Dantes: Proving that Trump isn’t the only one who seems unable to do anything besides making a bad situation even worse.
Immanentize
@Le Comte de Monte Cristo, fka Edmund Dantes:
Why now? Because of the car hitting protesters yesterday? Something else?
HumboldtBlue
@Immanentize:
This must be related to the fact that three cops who murdered Breonna Taylor haven’t been dealt with in any meaningful manner.
And Biden launched a $15 million dollar ad campaign today and Nate Silver has Biden ahead by nine points nationally.
Immanentize
@HumboldtBlue: Simple bill from Congress is all it takes. Call it the Merritt Garland Act to Restore Justice.
Peale
So add this to the “priority number 1” if the Democrats win in the Fall. Just pass a law authorizing a DACA program and give anyone currently on it permanent residency without qualifications. No extra expense. No “You need to jump through hoops and prove that you’re not just a good person, but will be an exemplary upper middle class super citizen”. No using them as leverage to get some kind of comprehensive reform passed that won’t pass. Just pass one law to protect these 800,000 people and move on.
Immanentize
@HumboldtBlue: I guess it could be a no-pros announcement?
HumboldtBlue
@Immanentize:
Are we talking only Supreme Court or the entire Fed bench? And how many new judgeships would be created hypothetically?
Well they have MRAPS on the street for a reason
gene108
@Ken:
As any conservative will tell you the court was packed full of liberal RINO’s like Souter and Kennedy, and now Roberts (I guess).
If they could’ve gotten a true conservative like Bork, then Roe would be overturned.
Baud
@gene108:
They would probably be right about that. Borking Bork saved Roe for a generation.
rikyrah
@hitchhiker:
Come sit by me…social distancing of course, but, I’ll share my cake with you.
David Anderson
@patrick II: I doubt that this week at SCOTUS helps Trump on the margin. The argument is basically “I’m a loser who has had my ass kicked by a conservative majority Supreme Court repeatedly… vote for me and next time it will be different….”
Immanentize
@HumboldtBlue: Either or both Supreme Court or Federal bench. It’s obviously easier politically to pack the lower courts than the SCOTUS. And the evidence of huge caseloads, especially in the ninth and DC circuits would warrant expansions.
The ninth really should be split into two circuits — but how do you split federal jurisdiction over one state (California). They already have two divisions (north and south).
Yutsano
I can tell you why this is a big Biden deal. I assist with the processing of Individual Taxpayer Identification Numbers at my work. Basically, it’s a number so you can file taxes without being a citizen. We’re also processing renewals of those numbers, and I am astounded at how many DACA eligible people I see. And these are people who don’t speak a lick of the languages of their supposed home countries. There are many more people who are eligible for this than applied last time. DACA needs to be kept and refined to make it easy for these people the protections of the US government.
The Moar You Know
@Cermet: Roberts is not stupid. He’s on the wrong side but he’s not stupid. And he understands that a Trump re-election is a four-year victory at the price of decades in the wilderness. For the survival of the traditional GOP – the business wing of the party, which is Roberts’ party – Trump needs to be defeated soundly in 2020.
If they punt (very likely) or defeat the Roe challenge the evangelicals will be done with Trump. They gave him everything, including their supposed (nonexistent) moral high ground and their dignity, and he will have produced exactly nothing for them. Which is a result that anyone who ever paid even minimal attention to Trump over the years should have expected.
Kay
@gene108:
Overturning Roe is such a disaster for them I almost hope they do it. They don’t think it thru. There will be WEEKLY horror stories about moronic state laws with huge and devastating unintended consequences. Most the time when they draft the state laws they don’t even consider miscarriages that require medical intervention, which are a minefield unto themselves and really common.
What Roe really did is rope off an area and say “here, you may not go”. What that meant for lawmakers is they never had to grapple with the reality of any of it. I believe it’s impossible to do it well, so it will be a shitshow of dead and injured women and the shitshow will be WEEKLY. Unending. They’ll beg to have Roe back. It is a NIGHTMARE to regulate.
JPL
@Kay: Who would have thought that Robert’s could care less about the tweets?
Kay
@JPL:
There just seems to be a lot of bravery and dissent breaking out as his poll numbers decline.
I have noticed.
Hey, I’m all for it. Let’s keep this rolling downhill.
Immanentize
@Baud: But Bork was so fucking Borkable. Bork lost his confirmation vote 58-42. Straight up loser (only 55 Dems in Senate then)
gene108
@Peale:
The term Dreamers that’s applied to DACA recipients comes from the 2001 bill Development, Relief, and Education for Alien but Minors Act, proposed by Sen. Durbin and Sen. Hatch.
It has never gotten through both houses of Comgress.
It is not for a lack of effort, but Republicans have created enough choke points to kill all attempts at immigration reform. A comprehensive immigration reform bill passed the Senate, in 2011, with bipartisan support, and could have passed the House, but Boehner refused to bring it up for a vote.
Barbara
@Immanentize: The easiest way to change the Supreme Court is to do what they’ve been doing for appellate courts for more than 30 years, which is to appoint a new judge as soon as an existing judge reaches the age of 70, who joins the court as an additional justice. The biggest advantage of this is to avoid nakedly corrupt bargains such as that negotiated between Anthony Kennedy and Trump. You can’t “game out” when you reach the age of 70. If you want to have a say in your successor, you have to retire before the age of 70. The big egos on the Court are hardly likely to do that.
Immanentize
@Kay: They haven’t thought this through at all. Will I now be able to leave my estate to an unborn foetus? A fertalized egg in a freezer in another state? If it is my sperm can I force my wife to become pregnant with that zygote?
They have no idea how the law currently works regarding “life in being.”
Immanentize
@Barbara: But I don’t think that can currently be done on the Sup Ct. without a law change. But it makes perfect sense to do so.
Kelly
@Barbara: Four Justices are currently 70+. That would satisfy my Supreme Court packing desires. Still want a bunch of new judges on the lower courts.
Barbara
@Immanentize: Yes, definitely. They would need to change the law. But it wold not permanently enlarge the number of justices and does not constitute court packing. I actually think it would be not just defensible but beneficial to increase the number to 15 with three five panel members deciding cases and the court coming together for cases that would re-examine prior court precedents or other important cases, much like the appellate courts do for en banc cases. The work load of the court is ridiculously small.
Geminid
I always thought the straw that broke Bork’s back was his dissent in an appeal involving a battery factory that had to comply with new OSHA rules regarding lead exposure of workers. Two judges ruled that the factory could not require current female workers to be sterilized as a condition of continued employment. Bork thought it was ok. Just cold, in a scary way.
Just Chuck
@Barbara: SCOTUS is a cushy gig, that’s for sure. Thomas just shows up and doesn’t speak, scrawls down some bible verses and has his clerks write up something vaguely legalish-sounding to justify it.
Kay
@Immanentize:
You can see it in the state laws they draft. These are laws to proclaim morality. They’re not drafted with working parts. They start out insanely broad – have the potential to intrude on every single woman- and they get even worse when they try to narrow them because then the full scope of how difficult this will be starts to come clear.
There’s no real difference between some miscarriages that require medical intervention and an abortion. They’re the same thing. They’re going to have to get into intent, call experts, drag in the people around the women, just the investigations will be a nightmare.
Just consider this one thing- half of all abortions are not surgical. They’re medication. Now you’re talking about going into their houses to catch them. No one talks about any of this. They all stop at “overturn Roe!”
Okay. Then what happens?
Dan B
@Betty Cracker: Is Trump attacking Cheney?
“Shotgun blast to the face.”
Although this tweet seems written by surrogate: grammer, punctuation, non repetitive, etc.
Kay
@Immanentize:
There are things that are not good not because no one tried to do them better or thought they could do better but because that is the best we can do.
Roe is that. There’s no better way to handle this nightmare of an issue. Conservatives like to sneer at it but they won’t be able to do any better. It’s really hard. It is UNLIKE anything else.
xcentrikbk
Good afternoon:
Well, I am a lawyer who worked most of his career in federally-funded programs, and IMHO this is not a hard case unless you make it one. Trump has over and over again lost cases because he simply did whatever he wanted when he wanted and he disregarded the legal requirements for doing so. I was particularly appalled by Justice Thomas’ argument that because Trump’s DHS (not a court) determined that the DACA was illegal, they did not have to comply with the APA. There is, of course, no such exemption in the law.
Peale
@Kay: We’d like to think that there’s no way they could find people to take the job of investigating people after miscarriage for the purpose of finding illegal abortions. “The proof against you is that you’re still alive! So your life really wasn’t at risk! Oh, don’t give that “boo who. I’m so sad that this child I was expecting died. You’re looking at 20 years.”
Unfortunately, I think we would be shocked to find out how many people would gladly volunteer for the job.
sdhays
@Dorothy A. Winsor: There are clips of the infamous “photo op” in front of the church from a couple weeks ago. I still can’t wrap my brain around what photo they were looking to get out of it. All I’ve seen is him standing around holding up a Bible, looking around like a total moron. How did that play out in their heads? It’s just about the stupidest thing ever.
sdhays
@Goku (aka Amerikan Baka): Jeffro (I think) posted this a couple days ago. It’s less overtly partisan and achieves most goals without needing a Constitutional amendment (Section 1.8):
It would still be radical, but it’s reforming the structure of the court to be more responsive in general, not locking in a bunch of liberal justices because Democrats had a good year. I’d love to do that, but the fallout of that might not work out well. And, personally, I think that for the Supreme Court, life-time appointments actually create corruption (like we saw with O’Connor with Bush vs. Gore and Kennedy with the Kavanaugh appointment), so being able to deal with that without a Constitutional amendment seems really worth doing.
Le Comte de Monte Cristo, fka Edmund Dantes
@Immanentize:
Ever since the Chief got fired, they’ve alternated between whining about quitting and aggressive militarized thuggery – a lot on video. Some cop even popped a round at a janitor running video in a glass pedway se connecting the courthouse over a street .
burnspbesq
@Ken:
it goes farther than that. True Conservatives now believe that Marbury v. Madison was wrongly decided, and that the entire idea of Judicial review is an abomination.
Barbara
@Kay: Isn’t that the truth! I have read numerous thought experiments that try to compare abortion (or pregnancy) to other things and they fail, obviously and evidently. The CLOSEST analogy in my view is organ donation, where someone is found to be a compatible rare match — nothing in our jurisprudence would ever force that person to undertake even minimal risks to donate organs or bone marrow to save someone’s life.
@Just Chuck: And with electronic filing the clerks can cut and paste briefs to churn out a reasonable first draft. Some judges work much harder than others, but if you don’t want to work hard, you don’t have to as an appellate judge.
J R in WV
So now it appears that the Trump administration is way too incompetent to actually accomplish their fascist agenda legally. Trump’s appointees never knew how the federal government operates, and so can’t use it to accomplish their despicable goals. Thanks to Trump’s inability to recruit good administrators, we may be saved by this fall’s election.
Will crack another good bottle of bubbly this evening to celebrate this victory over fascism!
Dan B
@Kay: Parallels between “regulating” abortion and LGBTQ rights come to mind. Questions like: What constitutes sodomy? Do women count as sodomites? What is natural law? And what is the scope of enforcement? Can you enter a residence to catch people in the act or is testimony by a citizen enough? It seems there are difficulties regulating sexual morality that stem from our Calvinist roots. Are there clear benefits to society and order or are there harms? Can such laws be applied equitably or will they always be capricious?
Basically I’d love to see Calvinism relegated to the status of an individual choice than a suite of regulations forced upon everyone. If you choose to live by Calvinist precepts please, you are welcome.
burnspbesq
@Immanentize:
Splitting the Ninth Circuit has been a right-wing wet dream for decades, but there isn’t any way to do it that makes sense any more.
Similarly, there’s no obvious way to carve out a fifth district in California. I suppose you could carve a Middle District out of parts of the Northern, Central, and Eastern—say, Ventura County up the coast to Santa Clara County (San Jose), and reaching inland to Fresno via Bakersfield. But you would need at least four courthouses to make it work.
Dan B
@Le Comte de Monte Cristo, fka Edmund Dantes: We’ve had some problems with Seattle PD failing to respond to 911, especially near CHAZ / CHOP. Is there a pattern where Departments with far-right unions are trying to demonstrate what life is like without police protection? A perceptive public and a quality MSM would make it clear that the issue is police wanting to enforce the law with minimal civilian oversight. And that they are failing to do their job to protect the public.
It’s an eerie parallel between Louisville and Seattle. Is this occurring elsewhere?
Ken
@burnspbesq: I partly agree, in that judicial review is not an explicit Article IV power but has to be inferred. And of course once the court made that huge power grab for itself, it began using its new power to make sure the other branches couldn’t do anything similar.
Ken
You forgot Gorsuch. And Kavanaugh, who dissented but wasn’t rude enough to the gays in his dissent, according to Alito.
Martin
Good. Props to schrodingers_cat for reading this one right. I thought this one was a goner, but I didn’t anticipate they’d hedge like this. I’ll take it. Let’s win in Nov and have Congress formalize it.
Still think we’re fucked on abortion.
Martin
@burnspbesq: True conservatives are creeping pretty close to believing that voting is an abomination, so lets just call them fascists and simply assume they’ll oppose anything democratic or involving oversight.