One of the big things that seems to be here is people seem to want to take 'constitutional' and 'legal' to mean good. They aren't synonyms. Things you can like and policy positions you support can be illegal and unconstitutional just as the inverse can be true.
More importantly, the path of how you get to those things is hugely important and just because there's an outcome you like doesn't mean you can use the path that was taken to get there.
A friend of mine is a Hebrew - English translator, and some years ago a Christian group wanted him to translate their pamphlets into Hebrew in order to convert Israelis to Christianity. He refused the commission, not wanting to create such material, and I can't imagine anyone would accuse him of illegal discrimination. It seems like there are many situations where you can obviously refuse a job because it would compel you to engage in expression you disagree with (such as above), many situations where you obviously can't (any non-expression transaction), and a very few where reasonable minds can disagree (custom wedding cake, custom flower arrangement for event, putting writing on a store-bought cake with frosting etc.). Exactly where we draw the boundary on the last category is pretty low stakes.
Given the current anti-gay backlash, I can understand why people would get upset about this case and feel like it is another attack, but I don't think it should be viewed in that light.
I don't agree with Gosuch every time, but he's not a hack. The man thinks for himself and when ideology doesn't match the outcome he wants, he lets the chips fall where they may.
At this point, I think he Kagen are the only instituionally honest justices on the court - with the verdict still out on Brown Jackson and Coney Barrett. Alito is the hackiest, with Thomas and Sotomayor close behind. Roberts and (probably) Kavanaugh are the rare "institutionalist hacks."
I'm a lawyer who clerked for a United States District Judge.
On the SCOTUS student debt case, you say you think Biden did not have legal authority to forgive the student debt, but you do not provide YOUR legal reason.
The Act in question allows the president to take extraordinary action in a national emergency. Trump declared Covid-19 a national emergency. Covid-19 put a lot of people out of work, including students who had taken out student loans.
I think the historical kink is student loans were really popular, then Congress passed an Act that prevented students bankrupting student loans. I know his, because I represented an optometry student in his bankruptcy, and he won before the Bankruptcy Judge, but he lost before the U.S. District Judge.
The other part of the SCOTUS decision that makes no sense to me, as you point out, is how did Nebraska have legal standing to bring the lawsuit?
It looks to me that this SCOTUS decision opens the door to states filing federal lawsuits about any and every thing that hurts their feelings.
I think the 6 Justices who opened that door should be tarred and feathered, then keel-hauled, and put on Elon Musk's next rocket.
I think the standing issue is the most problematic since it opens the door to other cases being brought for things that aren’t really happening.
The fact that they had to make up a case for the non-discrimination case kinda makes me think there aren’t really any instances of this thing actually happening, since I feel like if they were even occurring occasionally they could’ve found a better case to use. Even before this ruling id bet most LGBT people, including myself, would probably do research into the baker or web designer to see if they’re lgbt friendly and if it wasn’t clear they are then you’d move on to another without ever contacting them.
So I think the case feels monumental in theory but in practice it’s probably inconsequential, unless it ends Ip being a stepping stone that leads to further erosion of non-discrimination law which is kind of Robert’s MO when he feels strongly about an issue (see voting rights, abortion, affirmative action, etc).
I think the justiciability issue on the 303 Creative website case is a big deal. Courts in our system of separation of powers are supposed to decide live disputes and their decisions are supposed to be grounded in the facts. There was no case to decide and the court should not have taken the case. I listened to Judge Vaughn Walker who was the federal trial court judge in the Prop 8 federal case brought by Boies and Olson and he was lamenting the fact that when the case got to the Supreme Court they just ignored the factual basis that he had established in the trial court because he had taken pains to allow the defendants to make their case that there was a rational basis for limiting marriage to opposite sex couples and they just had nothing to offer of any substance. Facts should matter when courts are deciding cases.
I’m in no position to argue SCOTUS precedent, etc., but I’m often curious about people’s rather selective “sincerely-held religious beliefs.” Like a web designer that objects to same-sex marriage (which is not mentioned in the Christian Bible) but not the myriad direct admonitions against people/behaviors that have been clearly and unequivocally condemned by the same faith: I mean have you *read* what the Bible says about divorce, particularly women who have sought divorce? (I suspect 303 would have made Kimberly Guilfoyle’s wedding website without complaint).
Further, she said she’d be happy to make a website for a gay client for something besides marriage (though homosexuality is condemned pretty clearly in Leviticus).
So at what point is it a “religious belief” if you can’t actually point to the doctrine that you are following, and when is it just, well, prejudice and discrimination?
And since SCOTUS is now inviting hypothetical controversies into its marbled halls, what happens now when a “sincerely held religious belief” accommodation case knocks up against a “top-tier” protected class? Like those in my southern family who “sincerely” believe that interracial or interfaith marriages are ALSO a sin?
I agree with the comments about people on the left as well as mainstream media looking very silly right now, conflating interpretation under the law with policy decisions. I heard a supposed "legal expert" on CNN this morning lamenting the wedding cake decision. She didn't make a single legal point, her "analysis" consisted of being against it from a policy point of view. I'm far from being someone on the right, but I've been an attorney for 40 years, and can think of many other factual scenarios where the left would be celebrating this decision if those facts were different. I suppose we're at a point where it's impossible for any politician or commentator to be intellectually honest.
I feel more strongly than you do about the standing issue, Josh. I think the majority signaled that they don't particularly care about standing if they agree with the plaintiff on the merits. I think we'll see a lot of cases where there either isn't a harm to the plaintiff or the case is extremely unripe in the next couple of years, which is going to result in the Court making policy
When a business refuses to allow provide services to interracial couples for planning their weddings, are we prepared to accept the same result? If not, why not?
Somebody once made the argument that eliminating legacy admissions would be bad for underprivileged students because possibly the biggest benefit of attending an elite university is the opportunity to network with legacy families. Not sure if I bought that argument, but it amused me.
Again, I'm a lawyer, who clerked for a United States District Judge.
On the SCOTUS decision that ends Affirmative Action, I was born and raised in Birmingham, Alabama, and like Alabama Governor George Wallace before me, I graduated from the University of Alabama School of Law. I was attending Vanderbilt University in Nashville, Tennessee, when Governor Wallace proclaimed, "Segregation now, segregation forever!" And, when Wallace stood blocking black students from going to class at the University of Alabama, until he was moved aside by Alabama National Guardsmen federalized by President Kennedy.
My father was rich from his business and investing. He paid for my Vanderbilt tuition. He paid for my Alabama law school tuition. He financially supported me through college and law school. I was privileged. His company management were white. His office staff were white. His route salesmen were white. His production and warehouse workers were black. His company was Golden Flake Snack Foods. It competed head-in against much larger Frito-Lay in the southeastern states.
White guy me knows for a fact that Affirmation Action was the right thing back in those days and later. But is it the right thing today? I think that's what the real issue is, and I also think the red spectrum says it's not the right thing today and the blue spectrum says it is the right thing today. I'm not left or right, but am in the middle, or, I try to be where what makes sense seems to be.
There is no way I can look at the American right and its very predominately white skin color and think it is not a white supremacy outfit. When I hear the American right even now claim the 2020 election was stolen, I hear them not saying, stolen by Blacks. When I see photos of Trump rallies, the January 6 insurrection, the Charlottesville Confederate monuments removal protest, I see oceans of white faces. in the law is the doctrine of res ipsa loquitur, the thing speaks for itself.
I see red spectrum efforts in states to gerrymander voting districts so that white people end up having the most voting power. I saw SCOTUS recently rule against such gerrymandering.
I think colleges and businesses and local and the federal government, for example, should accept the best qualified students and employee applicants. But I know just how deep racial prejudice runs, and I don't for a heartbeat think white supremacy will not win out in the end, if the American right gets their way.
So, think what you like or wish. Pretend what you like or wish. Regardless of what the American right says, it above all thinks it speaks for God in America, and God is white and Jesus was white and had blue eyes and blond hair, as, res ipsa loquitur- their art about him plainly shows. You have 5 white right Christian justices on the US Supreme Court, and one Uncle Tom, who enjoys perk$ provided by his right white friends.
Thoughts On This Week's Supreme Court Decisions
One of the big things that seems to be here is people seem to want to take 'constitutional' and 'legal' to mean good. They aren't synonyms. Things you can like and policy positions you support can be illegal and unconstitutional just as the inverse can be true.
More importantly, the path of how you get to those things is hugely important and just because there's an outcome you like doesn't mean you can use the path that was taken to get there.
A friend of mine is a Hebrew - English translator, and some years ago a Christian group wanted him to translate their pamphlets into Hebrew in order to convert Israelis to Christianity. He refused the commission, not wanting to create such material, and I can't imagine anyone would accuse him of illegal discrimination. It seems like there are many situations where you can obviously refuse a job because it would compel you to engage in expression you disagree with (such as above), many situations where you obviously can't (any non-expression transaction), and a very few where reasonable minds can disagree (custom wedding cake, custom flower arrangement for event, putting writing on a store-bought cake with frosting etc.). Exactly where we draw the boundary on the last category is pretty low stakes.
Given the current anti-gay backlash, I can understand why people would get upset about this case and feel like it is another attack, but I don't think it should be viewed in that light.
Bless the hearts of the fools that think the ruling on racial preference in admissions will result in merit being the primary factor in decisions.
I don't agree with Gosuch every time, but he's not a hack. The man thinks for himself and when ideology doesn't match the outcome he wants, he lets the chips fall where they may.
At this point, I think he Kagen are the only instituionally honest justices on the court - with the verdict still out on Brown Jackson and Coney Barrett. Alito is the hackiest, with Thomas and Sotomayor close behind. Roberts and (probably) Kavanaugh are the rare "institutionalist hacks."
I'm a lawyer who clerked for a United States District Judge.
On the SCOTUS student debt case, you say you think Biden did not have legal authority to forgive the student debt, but you do not provide YOUR legal reason.
The Act in question allows the president to take extraordinary action in a national emergency. Trump declared Covid-19 a national emergency. Covid-19 put a lot of people out of work, including students who had taken out student loans.
I think the historical kink is student loans were really popular, then Congress passed an Act that prevented students bankrupting student loans. I know his, because I represented an optometry student in his bankruptcy, and he won before the Bankruptcy Judge, but he lost before the U.S. District Judge.
The other part of the SCOTUS decision that makes no sense to me, as you point out, is how did Nebraska have legal standing to bring the lawsuit?
It looks to me that this SCOTUS decision opens the door to states filing federal lawsuits about any and every thing that hurts their feelings.
I think the 6 Justices who opened that door should be tarred and feathered, then keel-hauled, and put on Elon Musk's next rocket.
I think the standing issue is the most problematic since it opens the door to other cases being brought for things that aren’t really happening.
The fact that they had to make up a case for the non-discrimination case kinda makes me think there aren’t really any instances of this thing actually happening, since I feel like if they were even occurring occasionally they could’ve found a better case to use. Even before this ruling id bet most LGBT people, including myself, would probably do research into the baker or web designer to see if they’re lgbt friendly and if it wasn’t clear they are then you’d move on to another without ever contacting them.
So I think the case feels monumental in theory but in practice it’s probably inconsequential, unless it ends Ip being a stepping stone that leads to further erosion of non-discrimination law which is kind of Robert’s MO when he feels strongly about an issue (see voting rights, abortion, affirmative action, etc).
Fascinating to observe the political valence of mask wearing in that protest photo.
I think the justiciability issue on the 303 Creative website case is a big deal. Courts in our system of separation of powers are supposed to decide live disputes and their decisions are supposed to be grounded in the facts. There was no case to decide and the court should not have taken the case. I listened to Judge Vaughn Walker who was the federal trial court judge in the Prop 8 federal case brought by Boies and Olson and he was lamenting the fact that when the case got to the Supreme Court they just ignored the factual basis that he had established in the trial court because he had taken pains to allow the defendants to make their case that there was a rational basis for limiting marriage to opposite sex couples and they just had nothing to offer of any substance. Facts should matter when courts are deciding cases.
I’m in no position to argue SCOTUS precedent, etc., but I’m often curious about people’s rather selective “sincerely-held religious beliefs.” Like a web designer that objects to same-sex marriage (which is not mentioned in the Christian Bible) but not the myriad direct admonitions against people/behaviors that have been clearly and unequivocally condemned by the same faith: I mean have you *read* what the Bible says about divorce, particularly women who have sought divorce? (I suspect 303 would have made Kimberly Guilfoyle’s wedding website without complaint).
Further, she said she’d be happy to make a website for a gay client for something besides marriage (though homosexuality is condemned pretty clearly in Leviticus).
So at what point is it a “religious belief” if you can’t actually point to the doctrine that you are following, and when is it just, well, prejudice and discrimination?
And since SCOTUS is now inviting hypothetical controversies into its marbled halls, what happens now when a “sincerely held religious belief” accommodation case knocks up against a “top-tier” protected class? Like those in my southern family who “sincerely” believe that interracial or interfaith marriages are ALSO a sin?
Just trying to figure out which of these opinions would get you yelled at the most on Twitter.
I agree with the comments about people on the left as well as mainstream media looking very silly right now, conflating interpretation under the law with policy decisions. I heard a supposed "legal expert" on CNN this morning lamenting the wedding cake decision. She didn't make a single legal point, her "analysis" consisted of being against it from a policy point of view. I'm far from being someone on the right, but I've been an attorney for 40 years, and can think of many other factual scenarios where the left would be celebrating this decision if those facts were different. I suppose we're at a point where it's impossible for any politician or commentator to be intellectually honest.
Miss the pod
I feel more strongly than you do about the standing issue, Josh. I think the majority signaled that they don't particularly care about standing if they agree with the plaintiff on the merits. I think we'll see a lot of cases where there either isn't a harm to the plaintiff or the case is extremely unripe in the next couple of years, which is going to result in the Court making policy
When a business refuses to allow provide services to interracial couples for planning their weddings, are we prepared to accept the same result? If not, why not?
Somebody once made the argument that eliminating legacy admissions would be bad for underprivileged students because possibly the biggest benefit of attending an elite university is the opportunity to network with legacy families. Not sure if I bought that argument, but it amused me.
Again, I'm a lawyer, who clerked for a United States District Judge.
On the SCOTUS decision that ends Affirmative Action, I was born and raised in Birmingham, Alabama, and like Alabama Governor George Wallace before me, I graduated from the University of Alabama School of Law. I was attending Vanderbilt University in Nashville, Tennessee, when Governor Wallace proclaimed, "Segregation now, segregation forever!" And, when Wallace stood blocking black students from going to class at the University of Alabama, until he was moved aside by Alabama National Guardsmen federalized by President Kennedy.
My father was rich from his business and investing. He paid for my Vanderbilt tuition. He paid for my Alabama law school tuition. He financially supported me through college and law school. I was privileged. His company management were white. His office staff were white. His route salesmen were white. His production and warehouse workers were black. His company was Golden Flake Snack Foods. It competed head-in against much larger Frito-Lay in the southeastern states.
White guy me knows for a fact that Affirmation Action was the right thing back in those days and later. But is it the right thing today? I think that's what the real issue is, and I also think the red spectrum says it's not the right thing today and the blue spectrum says it is the right thing today. I'm not left or right, but am in the middle, or, I try to be where what makes sense seems to be.
There is no way I can look at the American right and its very predominately white skin color and think it is not a white supremacy outfit. When I hear the American right even now claim the 2020 election was stolen, I hear them not saying, stolen by Blacks. When I see photos of Trump rallies, the January 6 insurrection, the Charlottesville Confederate monuments removal protest, I see oceans of white faces. in the law is the doctrine of res ipsa loquitur, the thing speaks for itself.
I see red spectrum efforts in states to gerrymander voting districts so that white people end up having the most voting power. I saw SCOTUS recently rule against such gerrymandering.
I think colleges and businesses and local and the federal government, for example, should accept the best qualified students and employee applicants. But I know just how deep racial prejudice runs, and I don't for a heartbeat think white supremacy will not win out in the end, if the American right gets their way.
So, think what you like or wish. Pretend what you like or wish. Regardless of what the American right says, it above all thinks it speaks for God in America, and God is white and Jesus was white and had blue eyes and blond hair, as, res ipsa loquitur- their art about him plainly shows. You have 5 white right Christian justices on the US Supreme Court, and one Uncle Tom, who enjoys perk$ provided by his right white friends.